FEDERAL COURT OF AUSTRALIA

Australian Colliery Staff Association v Queensland Mines Rescue Service

[1999] FCA 395

INDUSTRIAL LAW - appeal against decision of Industrial Magistrate - whether promotion and transfer or a new contract of employment - whether place/location of employment was a term of employment - whether transfer of locality was a term of employment - meaning of “reduction of hands” for the Coal Mining Industry (Permanent Mines Rescue Staff) Award 1991 - discussion of distinction between employment relationship and the contract of employment.

MINING LAW - consideration of the legislative history of the Coal Mining Act in particular coal mining rescue services.

WORDS AND PHRASES - “reduction of hands”.

Coal Mining Industry (Permanent Mines Rescue Staff) Award 1991 Queensland cl 25

Workplace Relations Act 1996 (Cth)

Coal Mining Act 1925 (Qld) s 76

Coal Legislation Amendment Act 1997 (Qld)

Jones v Associated Tunnelling Co Ltd [1981] IRLR 477 cited, distinguished

O’Brien v Associated Fire Alarms Ltd [1968] 1 WLR 1916 cited

Byrne v Australian Airlines Ltd (1995) 185 CLR 410 followed

Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 327 cited

BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 cited

Gunton v Richmond upon Thames London Borough Council [1981] 1 Ch 448 cited

AUSTRALIAN COLLIERY STAFF ASSOCIATION v QUEENSLAND MINES RESCUE SERVICE

QG102 OF 1998

COOPER J

BRISBANE

9 APRIL 1999

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG102 OF 1998

BETWEEN:	AUSTRALIAN COLLIERY STAFF ASSOCIATION Applicant
AND:	QUEENSLAND MINES RESCUE SERVICE Respondent
JUDGE:	COOPER J
DATE OF ORDER:	9 APRIL 1999
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The order of the Industrial Magistrate at Ipswich made on the 21 August 1998 dismissing the complaint of the Australian Colliery Staff Association be set aside.

2. The matter be remitted to the Industrial Magistrate at Ipswich for hearing in accordance with law and these reasons.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG102 OF 1998

BETWEEN:

AUSTRALIAN COLLIERY STAFF ASSOCIATION

Applicant

AND:

QUEENSLAND MINES RESCUE SERVICE

Respondent

JUDGE:	COOPER J
DATE:	9 APRIL 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 On 27 May 1998 the Australian Colliery Staff Association (“the Complainant”) filed a complaint and summons against the Queensland Mines Rescue Service Ltd (“the Defendant”) in the Industrial Magistrates Court at Ipswich, Queensland. The complaint alleged that the Defendant, in breach of the Coal Mining Industry (Permanent Mines Rescue Staff) Award 1991 Queensland (“the Award”) had, as employer of one Malcolm John Parsons, failed to pay to the employee severance pay under clause 25(a)(i) and retrenchment pay under clause 25(b)(i) of the Award. The Complainant sought imposition of penalties pursuant to s 178(1) of the Workplace Relations Act 1996 (Cth) (“the Act”) and an order pursuant to s 178(6) of the Act for payment of the sums allegedly due for severance and retrenchment pay.

2 On 27 July 1998 the Defendant served a defence to the complaint and summons. Attached to the document and marked “Attachment A” was a copy of what was described as “Mr Parsons original letter of appointment to the then Brigade dated 10 April 1989”. Also attached and marked “Attachment B” was a copy of what was described as a “subsequent letter dated 11 August 1993 confirming the appointment of Mr Parsons as Superintendent with the organisation”. Copies of relevant clauses of the Award were attached as “Attachment C”.

3 The Defendant, by its defence, pleaded that Mr Parsons’ employment had not been terminated and that he had not been retrenched in consequence of the employer deciding upon a reduction of hands. It pleaded that Mr Parsons remained in employment and that he had been relocated from Booval, near Ipswich to Blackwater, Queensland retaining his current classification of Superintendent.

4 In the final paragraph of its defence the employer made application for the proceedings to be struck out on the basis that there had been no termination and no reduction of hands and that in consequence no entitlements under clause 25 had become payable.

5 The Complainant, on 29 July 1998, filed a reply to the defence. The essence of the Complainant’s reply was that Mr Parsons was employed as the Station Superintendent at Booval and the contract of employment did not entitle the employer to direct the employee to transfer from Booval to Blackwater. Termination of the employment at the Booval location when the Booval Mines Rescue Station was closed because there were no longer underground coal mines to serve, was, the Complainant contended, termination of the employment in circumstances which gave rise to entitlements under clause 25 of the Award.

6 The Complainant filed an affidavit of Mr Parsons which had exhibited to it a copy of an advertisement for Station Superintendent with the Queensland Mines Rescue Brigade (“the Brigade”) to work from its Booval Station. The affidavit also had exhibited to it a copy of the letter of offer dated 11 August 1993 together with a position description for “Superintendent Booval” which Mr Parsons received from the State Manager of the Brigade. Additionally, there was exhibited correspondence between the Defendant and the Complainant relating to closure of the Booval Mine Rescue Station and the Collinsville Mine Rescue Station and the transfer of employees from those stations to Blackwater or Dysart Mine Rescue Stations and correspondence between Mr Parsons and the Defendant.

7 Before the Industrial Magistrate on 11 August 1998, the parties wished to have determined as a preliminary point whether clause 25 of the Award applied and whether Mr Parsons thereby had an entitlement to be paid under the clause. In this respect it was not intended by the parties that Mr Parsons would give evidence or be cross-examined on his affidavit. Rather, it appears that the parties intended that the issue be decided on the proper construction of the documents attached to the defence and to Mr Parsons’ affidavit, including the Award, and upon other documents provided by them to the Industrial Magistrate. It also appears that the parties were content to make submissions as to commonly accepted facts where no objection was taken by either party. A copy of page 1685 of the Queensland Government Gazette No 90 of December 1988 was also provided to her Worship. The Industrial Magistrate agreed to such a course, although the failure to call sworn evidence was a matter of comment in her Worship’s reasons for decision.

8 In the result the Industrial Magistrate dismissed the complaint. In doing so, she said in part :

“It is asserted on Mr Parsons behalf, that as he was appointed as station superintendent at Booval, and that if that station closed, he was then effectively made redundant. And that in essence, he could not be forced to take, what amounts to a compulsory transfer. I was not provided with any evidence about Mr Parsons view of what the initial employment contract was, and why he thought his employment was only at Booval, and nowhere else, or why he thought transfer was not an issue.

I have to say that the letter appointing Mr Parsons, dated 11 August 1998, from the Queensland Mines Rescue Service, clearly says that he was appointed as a superintendent with this organisation, that is, the Mines Rescue Service. It then goes on to say, that he will be located to the suburb of Booval, as station superintendent. It was submitted by the complainant that this was a clear indication that Booval could be regarded as his only place of employment.

That argument does not carry much weight with me. The letter states, in unequivocal terms, that he was appointed as a superintendent with the organisation. Frankly, I view the matter as merely a promotion of Mr Parsons, within the organisation, bearing in mind, that he had previously been employed with that organisation as an instructor.

I also note, that in the Government Gazette in December 1998, notification was published, that pursuant to the provisions of the Coal Mining Act of 1925 to 1981, it had been approved that the State of Queensland shall be one locality for mines rescue purposes. I think this adds further problems to Mr Parsons argument, that his appointment could only be regarded as being to a specific area.

The award itself, is silent on the subject of transfer, and I do not think that silence can be inferred, as being supportive of an argument, that therefore, transfers cannot be compulsorily made or offered. It is silent, and that neither supports, nor precludes the possibility of a transfer.

.....

In my view, and as I have already stated, Mr Parsons was employed as a superintendent of the Queensland Mines Rescue Service. He carried out those duties at Booval station, but if he was required by his employer, to carry out those duties elsewhere, then in my view, he must do so.

It is not my view of the information before me, that it was a fundamental condition of his contract of employment, that those duties were only to be carried out in Booval. There is no evidence or other information, that the duties in Booval, are any different, or more or less specialised, than those of any other superintendent, carried out at any other mines rescue station in this state.

Mining operations are generally carried out in the more remote parts of this country. And it would not have been entirely unforeseeable, that at some time, he might have been invited to go elsewhere. I think it is also some factor to be taken into account, in relation to the United Rubber decision, that many of the employees in that case, gave evidence of the difficulties in travel, from their present places of residence, to carry out their duties, some eighty or so kilometres away.

Whilst certainly, there is a personal dislocation for Mr Parsons, it seems on the information, which is before me, that those costs will be met by the service, and that therefore, there is not additional cost incurred in this transfer. Well, certainly, there is no evidence of that before me.

There is also no evidence which suggests that Mr Parsons, at the time of his contract of employment coming into existence, advised his employers, that he was only available to work in Booval, and not elsewhere, or that his employers told him, that he would only ever have to work in Booval.

Further, there is no evidence that if he had been aware of the possibility of being transferred at some time in the future, for whatever reason, he would not have taken the job. If there were some evidence to that effect, then this matter may have taken on a different result. In all of the circumstances, I am not satisfied that the complainant has discharged the onus of proof. And accordingly, I dismiss the complaint ”

9 The Complainant appealed to this Court pursuant to s 422(1) of the Act against the order dismissing the complaint. The grounds of appeal are :

(a) The learned Magistrate erred in finding that the provisions of clause 25 of the Coal Mining Industry (Permanent Mines Rescue Staff) Award 1991 did not apply to Mr Parsons’ employment contract.

(b) The learned Magistrate erred in not applying the provisions of clause 25(a)(iv) of the Coal Mining Industry (Permanent Mines Rescue Staff) Award 1991 by placing an onus on the Respondent of establishing that services of Mr Parsons were not terminated because of a reduction of hands by the Respondent.

(d) The learned Magistrate erred in giving insufficient or no weight to a relevant consideration, that being that Mr Parsons was being relocated a distance of 800 kilometres from Ipswich.

(e) The learned Magistrate erred in concluding that Mr Parsons could be required by the Queensland Mines Rescue Service to carry out his duties at a location away from the Booval Station.

(f) The learned Magistrate erred in concluding that it was not a fundamental condition of Mr Parsons’ employment contract that his duties were only to be carried out in Booval.

(g) The learned Magistrate erred in not finding that there was a reduction of hands pursuant to s 25(b)(i) of the Coal Mining Industry (Permanent Mines Rescue Staff) Award 1991.

10 On the hearing of the appeal the Complainant sought to file a further affidavit of Mr Parsons again exhibiting all the documents which the parties had placed before the Industrial Magistrate and seeking to address the issues her Worship raised as not having been addressed by evidence from Mr Parsons in the hearing below.

11 The material was available at the time of the hearing below. That hearing was conducted on an agreed basis which would not involve the calling of witnesses. For reasons which are set out later, Mr Parsons’ oral evidence on the subjects identified by the Industrial Magistrate are not relevant in circumstances where the terms and conditions of the employment are contained in written documents and where the location of the employment is ascertainable on the proper construction of the documents. Leave to call fresh evidence on the appeal is therefore denied.

12 The legislative history of the establishment and operation of mine rescue stations is relevant to the matrix of background facts against which Mr Parsons was employed by the Queensland Mines Brigade.

13 By s 76 of the Coal Mining Act 1925 (Qld) as amended, the Minister established by Order published in the Gazette, rescue stations in localities defined in the Order for the purpose of affording first aid in case of accident in any coal mine situated within the locality so defined. There was also power to constitute in the Order a committee of management which had power, subject to the approval of the Minister, to appoint such officers and to do such things as were necessary for the efficient management and control of the rescue station. The committee of management was empowered to sue and be sued in the name of “The Committee of the Rescue Station at ...” and to have vested in it ownership of the rescue station and of all the equipment, appliances and ambulances as were necessary for the operation of the rescue station. Section 76 also provided:

“There shall be continuously in attendance at such rescue station such and so many persons as the Minister directs, trained in first aid and holding certificates of competency in that behalf approved by the Minister.”

14 The rescue stations originally established were owned and operated locally by committees of management established in respect of a particular station for a particular locality. The power under s 76 of the Coal Mining Act 1925 (Qld) as amended contained a power to redefine a locality in any subsequent Order.

15 In 1979, s 76 of the Coal Mining Act 1925 - 1976 (Qld) was amended to delete the existing s 76 and to substitute in lieu a new s 76. The new s 76 provided, so far as is presently relevant :

“76(1) The Minister may, by notification published in the Gazette, establish a locality or a number of localities for the purposes of this section and may in like manner dissolve or alter the boundaries of any locality so established.

A locality established for the purposes of this section shall be defined as the Minister thinks fit in the notification by which it is established or by which its boundaries are altered.

A locality established for the purposes of this section may be wholly within the limits of the State or wholly within an area outside such limits in which the laws of the State may lawfully be made to apply or partly within such limits and partly within such area.

Each locality declared by the Minister for the purposes of section 76 of the Coal Mining Act 1925 (as amended from time to time), prior to the commencement of the Coal Mining Act Amendment Act 1979, shall continue in being until it is dissolved or its boundaries are altered pursuant to this section.

(2) In a notification by which he establishes a locality or in a subsequent notification published in the Gazette that refers to that locality, the Minister may direct that there shall be established for that locality a rescue brigade or a number of rescue brigades and may, in the same or a subsequent notification published in the Gazette, constitute a committee of management for the control and upkeep of each rescue brigade established or to be established and may in like manner dissolve a rescue brigade or a committee of management so established or constituted.

Each rescue station and committee of management established pursuant to section 76 of the Coal Mining Act 1925 (as amended from time to time) prior to the commencement of the Coal Mining Act Amendment Act 1979 shall continue in being as a rescue brigade and a committee of management of that brigade respectively until it is dissolved or, as the case may be, re-constituted pursuant to this section.

.....

(4) The function of a rescue brigade shall be to afford assistance in the case of emergency in any coal mine situated in the locality in which the brigade is established or situated in any other locality or place whether within or outside the State in such cases as are approved by the committee of management constituted for the brigade.

The committee of management constituted for the rescue brigade shall ensure that there is at all times available through the brigade a sufficient number of suitably qualified and trained persons suitably equipped to allow the brigade to properly discharge its function.”

16 The committee of management was to be known as “The Committee for the Rescue Brigade at ...” and was given the power to sue and be sued and through its members to hold the property of the rescue brigade.

17 On 5 December 1988 by Order published in the Queensland Government Gazette No 90 at page 1685 the Minister for Mines and Energy made the following orders :

“IN pursuance of the provisions of section 76 of the Coal Mining Act 1925 - 1981, it has been approved -

(a) that as of 1^st January, 1989, all previous localities and committees of management for mines rescue brigades are dissolved;

(b) that the State of Queensland shall be one locality for mines rescue brigade purposes;

(d) that those persons named in the Schedule hereto constitute the committee of management for the newly declared Queensland Mines Rescue Brigade.”

18 The Order had the effect of dissolving all previous localities established under s 76 of the Coal Mining Acts 1925 - 1981 and dissolving all existing committees of management for mine rescue brigades. The Minister then established a new locality for the purpose of s 76 which consisted of the whole of the State of Queensland and established a single rescue brigade for the new locality, ie the whole State. The effect of the Order was to centralise the functions of all previous brigades into one new brigade and to impose a duty under s 76(4) on the new brigade to ensure that at all times there was available through the brigade a sufficient number of qualified, trained and equipped persons to afford assistance in the case of an emergency in any coal mine situated in the State. Although management and control of coal mine emergency assistance in Queensland was centralised in one rescue brigade, the location of the coal mines which were previously being served by local rescue brigades from a local mines rescue station and the statutory duty, required that the Brigade operate and station employees and equipment in such a way and in such physical relationship to the coal mines as to be capable of providing timely and proper assistance in the case of emergency.

19 In 1997, by the Coal Legislation Amendment Act 1997 (Qld), the Coal Mining Act 1925 (Qld) was amended. The amendments included the omission of s 76 (Act No 62, 1997 s 6). There was inserted into the Coal Mining Act 1925 (Qld) a new Part 4A entitled “Mines Rescue”. The system for the provision of mine rescue services was changed to enable mine owners to obtain mine rescue services under a mine rescue agreement with an accredited corporation. The function of an accredited corporation was contained in s 103N which provided :

“103N An accredited corporation has the following functions -

(a) providing the following services (‘mines rescue services’) -

(i) helping each underground mine owner who is a party to a mines rescue agreement with the corporation to provide a mines rescue capability;

(ii) providing mines rescue training programs;

(iii) providing staff and equipment to comply with subparagraphs (i) and (ii) and the performance criteria;

(b) complying with the performance criteria;

20 Under the transitional provisions for Part 4A the committees of management and the rescue brigades, established under s 76 of the Coal Mining Act 1925 (Qld) as amended, were abolished (s 129) and the property of them vested in the first accredited corporation (s 130). The first accredited corporation was the Defendant. Employees of the former brigades, which in reality meant employees of the Brigade, by the operation of s 134 of the Coal Mining Act 1925 (Qld) as amended, became employees of the first accredited corporation. Section 134 of the amended Act provided :

“134(1)A person employed by a former entity immediately before the changeover day becomes an employee of the first accredited corporation.

(2) The person has the right against the corporation to all existing and accruing rights of employment that the person had immediately before the changeover day against the former entity.

(3) However, after the changeover day the rights are subject to any employment law.

(4) For any employment law, the person’s period of employment with the former entity is taken to be an equivalent period of employment with the corporation.

(5) In this section -

‘employment law’ means the Workplace Relations Act 1997 or any other law that applies to the rights or entitlements of a person as an employee of the corporation.”

21 The new provisions commenced to operate on 1 January 1998 (Sub Leg No 419) and on that date Mr Parsons became an employee of the Defendant with all existing and accruing rights of employment that he had previously had against the Brigade.

22 I turn to the documents which were before the Industrial Magistrate and the common facts.

23 Mr Parsons’ employment with the Brigade commenced in 1989 at the time when the Brigade had become the brigade responsible for the provision of rescue services to all underground coal mines in Queensland.

24 The letter of employment of Mr Parsons by the Brigade dated 10 April 1989 said, so far as is presently relevant :

“Further to my telephone advice, I would now confirm your appointment of ‘Instructor’ with this organisation and, on behalf of my committee, extend to you our good wishes for the future.

As discussed, you will be initially located in the township of Middlemount and be directed by Mr D Ryan, Superintendent, Dysart Rescue Station to whom you will report to.

.....

No specific hours of duty are set out. Training sessions may be held during the day or evening. Termination may be given by either party giving one months clear notice.

A position description is attached to this letter.

Would you please confirm on the second copy of this letter your acceptance of the offer and conditions and advise of the date when you intend to commence.”

25 The position description document was not attached to the copy letter before the Industrial Magistrate.

26 The advertisement for the superintendent position in 1993, the Industrial Magistrate was advised, appeared in the Australian and Courier Mail newspapers and thus was a position open to all qualified applicants, and was not one restricted to existing employees of the Brigade. The advertisement provided :-

“ MINES RESCUE

The Queensland Mines Rescue Brigade provides a quality service to the Coal Mining Industry of Queensland in the areas of Training, Maintenance of Rescue Equipment and preparedness for response to a Rescue Operation in emergency situations. The Brigade is seeking the services of a

STATION SUPERINTENDENT

To co-ordinate and participate in activities from our BOOVAL STATION, located near the city of Ipswich.

The salary package will be in accordance with ‘The Coal Mining Industry (Permanent Mines Rescue Staff), 1991, Queensland.

The successful applicant would have:

· A minimum of a 2^nd Class Certificate of Competency as defined by the Coal Mining Act 1925 - 1981 or relevant Mines Rescue Qualifications and experience.

· An understanding of The Queensland Mining Industry including the Legislative and Structural changes taking place in the Industry

· An ability to communicate with Industry personnel in a confident manner on all facets of Mines Rescue from both a local as well as a State perspective.

· Be community minded and dedicated to continually providing a service to the needs of the Industry, Community and Brigade.

· Have proven leadership and organisational skills.

· Be willing to positively contribute to a pro-active Organisation that seeks continuing improvement in performance and service.

This position calls for a team orientated person willing to, and capable of, fulfilling the needs of this challenging and dynamic position.

Written applications should be marked ‘Confidential’ and be addressed to reach:

MR TERRY KEENE

STATE MANAGER

QUEENSLAND MINES RESCUE BRIGADE

PO BOX 156, DYSART QLD 4745

By Friday 16 July, 1993”

27 The letter of appointment to Mr Parsons dated 11 August 1993, so far as is presently relevant, stated :

“Further to my verbal offer, I now confirm your appointment of Superintendent with this organisation, commencement date being 23^rd August 1993. On behalf of the Management Committee, I would like to extend to you, our good wishes for the future.

As discussed, you will be located to the suburb of Booval (situated in the township of Ipswich) as Station Superintendent. As Superintendent you will report directly to myself.

.....

No specific hours of duty are set out, as training sessions may be held during the day, evening or weekend.

Termination may be given by either party, with provision of one month’s clear notice.

A position description is attached to this letter.

Should you intend accepting the terms and conditions of this appointment, please complete the attached page and return it to head office as soon as possible.”

28 The document attached to the letter stated :

“POSITION DESCRIPTION

-- SUPERINTENDENT BOOVAL --

1. Co-ordinate and/or conduct where appropriate, Mines Rescue Training in the local area.

2. Co-ordinate and/or conduct station equipment and property maintenance.

3. Co-ordinate and/or conduct Mines Rescue Competitions.

4. Of at least three intervals per year, liaise personally with all local underground and open cut Mine Managers.

5. Provide monthly reports and other necessary reports, in a timely and professional manner.

6. Ensure that the Mines Rescue Station performs within budget parameters.

7. Act in a professional and outwardly positive manner at all times, to promote the Brigade, its Committee, Staff and Members.

8. Maintain an effective level of active membership, at the Booval Mines Rescue Station.

9. provide a Service to the Mines Rescue Organisation in the areas of:

· Test & repair of selected equipment,

· Perform selection & trial of new equipment, with assistance of Station Superintendents,

· Prepare and circulate a bi-monthly, state wide newsletter.

10. Promote external commercial activities, where appropriate and approved.”

29 Paragraph 3 of the defence filed by the respondent in the Industrial Magistrates Court, pleaded :

“3. The QMRS has recently closed two rescue stations due to the fact that there are no underground mining operations in the immediate vicinity, the stations being principally established to provide rescue services for underground mines.”

30 That statement was common ground before the Industrial Magistrate.

31 On 15 April 1998 the State Manager of the Defendant wrote to the Secretary of the Complainant in the following terms :

“Re: Rationalisation of the QMRS

At the Board of Directors Meeting held in Brisbane on Friday March 27^th an updated strategic plan was submitted for members consideration, this strategic plan was endorsed by the Board for QMRS.

Part of this plan covers the rationalisation of the Mines Rescue Service and an ‘Action Plan’ was agreed regarding the mothballing or possible sale of assets at Collinsville and Booval Stations and the relocation of staff from the above stations to Dysart and Blackwater.

This rationalisation would allow for mines presently served by Collinsville or Booval to be supported from Dysart or Blackwater stations. This system is proposed to be effective from April 30^th 1998.

Consequently, mines affected by this change would continue to be supported by QMRS staff in training and equipment from Dysart and Blackwater stations.

It should be noted that initial mine Inertisation Training will commence on April 27^th and cease on May 22^nd 1998. This training will involve significant staff and mine trainees in training during the period of transfer, and we request you [sic] support and understanding during this period.

The rationalisation plan will maintain efficiencies and minimise costs to industry in providing a Mines Rescue capability to industry in accordance with the QMRS strategic plan.

The Staff at Collinsville and Booval have been offered employment at Dysart and Blackwater respectively with no loss of earnings or conditions.

It is intended that both members will operate out of Collinsville and Blackwater from April 30^th, 1998 and relocation of families will follow thereafter, subject to satisfactory accommodation being obtained in Dysart and Blackwater.”

32 On 21 April 1998 the Defendant wrote to Mr Parsons, as follows :

“Dear Mal,

This is to formally advise you that following the decisions of the Board of Directors, you will cease operations at Booval Station by or on the 30^th April, 1998.

Your new base is Blackwater Station where you will continue your duties as proposed as well as other requirements as agreed by Lester Anderson, Superintendent, Blackwater Station.

Once suitable accommodation is procured your family will be relocated to Blackwater.”

33 Clause 25 of the Award states :

“ 25 - SEVERANCE AND RETRENCHMENT PAY

Severance pay

(a)(i) Subject to paragraph (ii) hereof an employee whose services are terminated by the employer on medical grounds or because of a reduction of hands shall be entitled to receive from his employer severance pay calculated at the rate of one ordinary week’s pay for each completed year of employment at the station.

(iii) Where the employee has obtained work on terms of paragraph (ii) hereof within seven days of the termination of employment the employer notwithstanding absence of action by him to obtain such work shall be deemed to have satisfied the requirement of paragraph (ii) hereof.

(iv) The onus of establishing that the services of the employee were not terminated by the employer on medical grounds or because of a reduction of hands shall be upon the employer.

Retrenchment Pay

(b)(i) Subject to paragraph (ii) hereof, when a reduction of hands is decided upon by an employer respondent to this award by reason of technological change (either at the station or at mines in the area served by the station), market forces (either directly affecting the station or indirectly affecting the station by operating on mines in the area serviced by the station) or diminution of reserves at mines in the area served by the station, an employee notwithstanding the provisions of Clause 5 herein shall receive one month’s (four working weeks) notice of retrenchment and in addition to the payment required to be made under paragraph (a)(i) hereof shall be entitled to receive from the employer retrenchment pay calculated at the rate of two ordinary week’s pay for each completed year of employment with a minimum payment notwithstanding the length of employment of two ordinary weeks pay.

(ii) An employer who no later than seven days after the date of termination of employment obtains or causes to be made available for the employee other work which the employee is competent to perform at a mine or mines rescue station within the district, which may reasonably be regarded as permanent and at which an employer agrees to treat service given by the employee at the mines rescue station as being service given to that employer for the purpose of severance and retrenchment pay, shall not be liable for payment to the employee of severance and retrenchment pay as provided in paragraph (i) hereof. Provided that an employee may elect to take employment at any mines rescue station in Queensland beyond the district on the terms herein before recited and by so doing will surrender entitlement to severance and retrenchment pay as provided in paragraph (i) hereof.

(iii) No payment to an employee under the provisions of paragraph (ii) hereto shall, with respect to the retrenchment payment component, exceed the amount that the employee would receive had the employee remained in the employ of the station until the age of 60 years.”

34 The structure of the clause is that paragraphs (a)(i) and (b)(i) create an entitlement to severance and retrenchment pay respectively when the conditions contained in the paragraphs exist.

35 No severance pay and no retrenchment pay is payable by the employer if the conditions contained in (a)(ii) or (a)(iii) and (b)(ii) respectively are satisfied.

36 If the employer contends that a termination of employment was for a reason other than one based on medical grounds or a reduction of hands and thus for a reason which does not given an entitlement to severance pay, the onus is on the employer to establish that fact (paragraph 25(a)(iv)).

37 Was Mr Parsons appointed to a position at the Booval Mines Rescue Station for the purposes of clause 25 of the Award, and were his services at that station terminated by a reduction of hands?

38 The Defendant submitted before the Industrial Magistrate and on this appeal that the employment of Mr Parsons with the Brigade was employment which involved an entitlement in the employer to station him at any location in Queensland from time to time as the employer chose to satisfy its operational needs. This, the Defendant submitted, flowed from the reorganisation of mine rescue services in 1988 which created the Brigade and from the original letter of appointment which stated that Mr Parsons would be “initially located” at Middlemount. The move to Booval, the Defendant submitted, was to be characterised as a promotion and transfer within the rescue service. The transfer to Blackwater was, the Defendant submitted, merely a transfer to a new location in consequence of an organisational restructure.

39 The Industrial Magistrate held that Mr Parsons was employed to a position as a supervisor within an organisation and that he was required to work at such locations as his employer might from time to time direct. In coming to that conclusion, her Worship relied upon the words in the letter to Mr Parsons of 11 August 1993 “... confirm your appointment of superintendent within this organization”, his previous employment as an instructor at Middlemount, the terms of the Government Gazette made in December 1988, that mining operations are generally carried on in the more remote parts of the country and that Mr Parsons failed to give evidence as to why he considered his employment was located at Booval and not elsewhere. She also concluded that the Award was silent on the question of transfer from one location to another.

40 In my view the Industrial Magistrate erred in the conclusion which she reached. The matters relied on by her do not, as a matter of construction or in themselves, support the drawing of such a conclusion.

41 In the present case the contract of employment is contained in the letter from the Brigade to Mr Parsons of 11 August 1993 together with the position statement attached to the letter and the written form of acceptance signed by Mr Parsons and dated 12 August 1993. That was the common position of the parties and the basis upon which they put the question of the application of clause 25 of the Award before the Industrial Magistrate for her determination. Those documents are to be construed against the relevant background circumstances. The relevant background circumstances are the advertisement, the circumstances of Mr Parsons at the time the offer of employment was made to him, and the terms of the Award which was applicable to the employment offered.

42 The advertisement placed by the Brigade in the Australian and Courier Mail newspapers was made to the world at large; it was not one made to existing employees of the Brigade only. The advertisement did not call for applications for a general position of superintendent with the Brigade. The advertisement was location specific. It was for the position of Station Superintendent at the Booval Mines Rescue Station that applications were sought. The advertisement did not state that the employment also involved compulsory transfer to other locations for indefinite periods at the direction of the employer.

43 Mr Parsons was, at the time of the advertisement, employed by the Brigade at Middlemount as an instructor. He had been employed in 1989. His letter of appointment dated 10 April 1989 stated that he was appointed as an “‘Instructor’ with this organisation ...” and that his appointment was “... initially located in ... Middlemount.” However, in respect to the employment vacancy advertised in the newspaper he was objectively in no different position to any other person applying for the position. The requirements of the position advertised were different to those he was then in and were to be undertaken at a different and distant location.

44 As a matter of construction, the Award is concerned with employment which is “service given by the employee at the mines rescue station” (clauses 25(a)(ii), 25(b)(ii)) and relates to the provision of services to “mines in the area served by the station” (clause 25(b)(i)). Severance pay, if payable, is “calculated at the rate of one ordinary week’s pay for each completed year of employment at the station” (clause 25(a)(i)). Examples can also be found in clauses dealing with rosters and shifts whereby the employment revolves around the operation of a mines rescue station serving mines within a defined area.

45 There is also in clause 25 a relationship between the place of employment at which work is performed and the place of residence of the employee. This operates where it is sought to provide or arrange alternative employment in the case of a termination falling within clause 25(a)(i), in order to avoid a liability to pay a severance payment. The alternative employment must be “at a mine situated within a reasonable distance of the employee’s place of abode”. An offer of work which does not satisfy this requirement is not for the purposes of the Award a true substitute for the employment terminated. The similar provision in clause 25(ii) where it is sought to avoid a liability for retrenchment pay requires that the substitute employment must be at “a mine or mines rescue station within the district”. In this context “district” means the region or locality of vaguely defined limits referrable to the place at which or in which the previous employment was provided and performed.

46 In my view the Award generally is concerned with employment at a particular mines rescue station and the employment with which clause 25 is concerned is employment at a particular mines rescue station which is terminated in the circumstances provided in clauses 25(a)(i) and 25(b)(i). The creation of the Brigade in December 1988 did not do away with the existing statutory scheme of mine rescue stations serving particular mines within an area. Rather, the management and operation of those stations were placed administratively in a single organisation which carried on its operations at various locations throughout the State and to achieve that end, the State was declared a single locality for the purposes of the Coal Mining Act 1925 (Qld) as amended. However, at an operational level the scheme remained and operated locally which is reflected in the concept of employment at particular mines rescue stations which underlies the Award. The Award was made in 1991 as a consent award in proceedings between the Complainant and the Brigade and one may infer with a complete understanding on their part of the organisational changes introduced in December 1988.

47 Clause 5(b) of the Award relating to the employee’s duty under the contract of employment is, in the context of the Award, confined in its operation to work at the particular mines rescue station where the employee works and includes work that is reasonably peripheral to it. The Award contains no express provisions as to compulsory transfer and relevantly contains no entitlements in respect of the costs associated with such a transfer. It was not argued below or on appeal that clause 24A, dealing with the introduction of major change in the workplace, empowers or evidences a power to compulsorily transfer employees from one location to another.

48 Finally, the right of an employee otherwise entitled to severance and retrenchment pay to elect or not to elect to take employment at a mine or mines rescue station beyond the district thereby surrendering the entitlements as provided in clause 25(b)(ii), is inconsistent with a coercive power in the employer to direct the employee to transfer to a location outside the district in consequence of an organisational change which would otherwise give entitlements to employees under clause 25.

49 The letter of 11 August 1993, and the position statement which accompanied it, contain no express term of the employment offered which made the place of the employment at any location in the State of Queensland at which the Brigade provided a mines rescue service, and, for such period of time at any such place, as the employer may from time to time determine. The words “... confirm your appointment of Superintendent with this organization ...” do not mean that mobility at the direction of the employer is a condition of the appointment. The phrase merely indicates the classification or category of the position within the structure of the organization and the category for the purposes of the Award in identifying applicable pay and other entitlements. Nor do the words “... you will be located to the suburb of Booval ...” mean “... or to any other location the Brigade may determine from time to time.” They mean no more than that the location of the work to be performed is Booval and the work to be performed at that location is specified in the position statement for the Station Superintendent of the Booval Mines Rescue Station. The position statement accompanying the letter is location specific to the Booval Mines Rescue Station and relates to the position of Station Superintendent to that station.

50 That the terms and conditions of the employment are to be found in the letter of 11 August 1993 and position description is plain from the concluding paragraph of the letter, which stated :

“Should you intend accepting the terms and conditions of this appointment, please complete the attached page and return it to head office as soon as possible.”

51 The attached page, which Mr Parsons signed and returned, stated :

“I understand and accept the terms and conditions of employment as detailed in this letter.”

52 Any evidence of Mr Parsons as to what he considered the location of his employment to be and as to the permanency of his employment at that location, in the context of an employment contract the terms of which had been reduced to writing, would have been irrelevant and inadmissible. Where the contract makes no express provision as to where the work is to be performed and it is necessary to imply such a term (Jones v Associated Tunnelling Co Ltd [1981] IRLR 477 at 480), evidence of pre-contractual discussions, the nature of the employment and the impact of transfer on the employee will be admissible as evidence going to the need for such a term to give the contract business efficacy and as to what the content of the implied term should be. But this is not such a case. The failure of Mr Parsons to give such evidence in those circumstances cannot sustain a conclusion that the employment contract contained a mobility requirement obliging Mr Parsons to move from Booval to such other location as the Brigade should determine for an indefinite period. Nor does the circumstance of the creation of the Brigade in 1988, Mr Parsons’ prior employment with the Brigade, or the carrying out of mining operations in remote areas, require a construction of the documents which defines the location of the employment as at all locations at which the Brigade provides mine rescue services.

53 In my view, on the proper construction of the documents containing the offer of the Brigade and the acceptance of Mr Parsons, Mr Parsons was employed under a new contract of employment which superseded the previous contract of employment he held with the Brigade. Under the new contract he was employed to fulfil the duties attaching to the position of Station Superintendent at the Booval Mines Rescue Station. The place of his employment under the new contract was at the Booval Mines Rescue Station. It was not necessary to imply in this contract any term as to the place of employment in order to give the contract business efficacy. The new contract of employment did not contain an express mobility requirement which would permit compulsory transfer. The Defendant was bound by the terms of this contract of employment when Mr Parsons became an employee of it by the operation of the 1997 amendments to the Coal Mining Act 1925 (Qld) as amended.

54 In the absence of an express mobility requirement it was for the Defendant to make out the requirements for the implication of such a term: O’Brien v Associated Fire Alarms Ltd [1968] 1 WLR 1916. In that regard it was for it to establish that a mobility clause of the type contended for satisfied the requirements for the implication of such a term: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 422. These requirements are detailed in Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 327 at 347 and BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283. In my view the Defendant cannot satisfy the test because on the material before the Industrial Magistrate it cannot be said that such a term is not inconsistent with the express terms of the contract which provided for employment at the Booval Mines Rescue Station. Nor can it be said that a mobility requirement is necessary to give business efficacy to the contract of employment for work at Booval. The employment contract is effective without it and in consequence no implication of a further term will be made. It is not sufficient that such a requirement may be reasonable: Codelfa Constructions at 346.

55 Did the Defendant terminate Mr Parsons’ services at the Booval Mines Rescue Station? In my view it did and the termination took effect as and from 1 May 1998. Notice of the termination is contained in the letter of 21 April 1998 set out earlier in these reasons and the Defendant’s letter of 1 May 1998 which contained the following :

“As the Booval station is closed as of today, you are hereby instructed not to enter those premises after today without my prior permission. As arranged, you are expected to attend for duty at Blackwater on Tuesday 5 May 1998, bearing in mind that Monday is a public holiday. If there are any problems in relation to travel or accommodation please contact me urgently on my mobile (0419 797 216). If you do not attend for work at Blackwater as instructed, your pay will be stopped from that time and your continued employment with QMRS will be considered further.

The QMRS has tried to be as reasonable as possible under the circumstances but the point has been reached where the Booval station has been closed and the current vacant position in Blackwater, that has been retained for you, must be filled.”

56 The services of Mr Parsons at Booval were terminated when he was directed not to attend at Booval Station and to cease duties as Station Superintendent at Booval. The closure of the station at Booval on 1 May 1998 had the practical effect of abolishing the position held by Mr Parsons and the work functions which went with it. As and from 1 May 1998 Mr Parsons was, by the conduct of the Defendant, dismissed as the Station Superintendent of the Booval Mines rescue Station and closed out of the opportunity to earn wages by the provision of his services at that station.

57 The dismissal of Mr Parsons and the denial of the opportunity to him to provide services may or may not have constituted a repudiation by the Defendant of its contract of employment with Mr Parsons. However that may be, for present purposes, the question is whether delivery of the letters and the closing out of Mr Parsons from the Booval Mines Rescue Station terminated the employment relationship which previously existed between Mr Parsons and the Defendant, as distinct from the contract of employment, and thereby terminated the services of Mr Parsons within the meaning of clause 25(a)(i) of the Award? The distinction between the contract of employment and the employment relationship was affirmed by the High Court in Byrne v Australian Airlines Ltd where the joint majority (Brennan CJ, Dawson and Toohey JJ) said (at 427 - 428) :

“... It does not appear to have been doubted in this country that a wrongful dismissal terminates the employment relationship notwithstanding that the contract of employment may continue until the employee accepts the repudiation constituted by the wrongful dismissal and puts an end to the contract. That was accepted by both the majority and minority in Automatic Fire Sprinklers Pty Ltd v Watson (See also Turner v Australasian Coal and Shale Employees Federation (1984) 6 FCR 177 at 191 - 192 and Siagian v Sanel Pty Ltd (1994) 122 ALR 333 at 342 - 345). As Latham CJ said (Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at 454):

‘An employer terminates the employment of a servant when he dismisses him, though, as I say hereafter, such a dismissal does not put an end to the contract between the parties. An argument that a dismissal because wrongful was a nullity was raised and rejected in both Williamson’s Case [Williams v The Commonwealth] (1907) 5 CLR 174 at 185 and Lucy’s Case [Lucy v The Commonwealth] (1923) 33 CLR 229 at 237, 248, 249, 252, 253.”

And as Dixon J said (Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at 469) :

There is nothing in the general law preventing the wrongful dismissal of a servant operating to discharge him from service, notwithstanding that he declines to accept the dismissal as absolving him from further performance but keeps the contract open and remains ready and willing to serve.’

In England, the position was for a time not so clear, although the view taken in Australia appears now to be accepted there (See Gunton v Richmond-upon-Thames London Borough Council [1981] Ch 448). Of course, even if an employee who is wrongfully dismissed chooses to keep the contract of employment on foot, he or she cannot claim remuneration in respect of any period after the wrongful dismissal because the right to receive remuneration for services is dependent upon the services having been rendered (See Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at 465; Gunton v Richmond-upon-Thomas London Borough Council [1981] 1 Ch 448 at 468). The employee is also under a duty to mitigate any damage (Gunton v Richmond-upon-Thames London Borough Council ]1981] 1 Ch 448 at 468). Moreover, a court will not, save in exceptional circumstances, order specific performance of a contract of personal service. The possible continuation of the contract of employment after a wrongful dismissal will, therefore, ordinarily be of no real significance (However, cf Hill v C A Parsons & Co Ltd [1972] Ch 305; Thomas Marshall (Exports) Ltd v Guinle [1979] Ch 227) as it will for all practical purposes be at an end.”

58 The relationship of employer and employee is broken when the employer dismisses the employee, excludes the employee from his or her previous employment and refuses to thereafter accept the services which the employee has previously rendered: Gunton v Richmond upon Thames London Borough Council [1981] 1 Ch 448 at 474.

59 In the context of the proceedings in the Industrial Magistrates Court, the relevant legal issue was whether the termination of the employment relationship created an entitlement under clause 25 of the Award and if it did, whether there had been a breach of the Award by the Defendant in failing to pay the entitlement. If there had been a breach of the Award, the Complainant, under s 178 of the Act, was entitled to initiate proceedings seeking, amongst other things, payment of the entitlements due to Mr Parsons (s 178(6)). Whether Mr Parsons additionally had an action against the Defendant for damages for breach of the contract of employment was irrelevant to the proceedings before the Industrial Magistrate. The enforcement by the Complainant of the Award provisions does not rely upon the existence of the contract of employment, nor on any breach of it. The Award provisions are enforceable independently of contract being binding and enforceable by virtue of the statutes under which they are made: Byrne v Australian Airlines at 419, 455 - 457.

60 In my view as a matter of fact and law Mr Parsons ceased to be an employee of the Defendant on 1 May 1998, notwithstanding that his contract of employment remained on foot on that date. It was not necessary as was submitted on behalf of the Defendant that Mr Parsons elect to accept what he regarded as a wrongful repudiation of his employment contract and resign on the basis of a constructive dismissal before his services were terminated for the purposes of clause 25 of the Award. Accordingly, the commencement of the proceeding in the Industrial Magistrates Court was not premature.

61 The Complainant and Mr Parsons, as appears from the transcript of proceedings before Commissioner Hodder, took the view that there was a dispute as to whether the Defendant was entitled to direct Mr Parsons to transfer to Blackwater and as to whether he was in consequence of the closure of the Booval Mines Rescue Station entitled to payments under clause 25 of the Award and that the dispute fell within clause 33 of the Award. Clause 33(a) requires that there be no stoppage of work by either the employer or the employee because of the existence of a dispute which, if not settled, would proceed in accordance with the grievance procedure. Mr Parsons advised the Defendant that conformably with clause 33, he would do the work at Blackwater but without prejudice to his rights under clause 25 of the Award to receive severance and retrenchment payments and to contend that he was not obliged to take up employment at Blackwater unless he voluntarily chose to do so.

62 As appears from the following exchange before Commissioner Hodder and the exchange between the Bench and the advocates in the Industrial Magistrates Court, that arrangement was accepted by the Defendant. In the Commission it was said :

“THE COMMISSIONER: And obviously there is also this problem with his employment.

MR GILLESPIE: Yes, and Mr Parsons is on a without prejudice basis, Commissioner, working out of Blackwater for the time being.

THE COMMISSIONER: Yes.

MR GILLESPIE: So that the operations are not hampered.

THE COMMISSIONER: Yes. Well that can be maintained, Mr Gillespie, I would assume.

MR GILLESPIE: Yes, not a problem.

THE COMMISSIONER: Very well. So that is without prejudice to either parties’ rights, in that sense, the continuation of that practice.

MR GILLESPIE: Yes, providing that it does not go on for too long, that is the only - - -

THE COMMISSIONER: Yes, well what are you calling too long?

MR GILLESPIE: Well, I mean Mr Norris is saying that they will make a decision what way they want to proceed within a week.

THE COMMISSIONER: Yes.

MR GILLESPIE: Well that is fine.”

In the Industrial Magistrates Court it was said :

“MR NORRIS: The question of the offer and acceptance of a new employment contract, right and whether Mr parsons has continued to work on a without prejudice basis to assist the service in effect doesn’t arise.

BENCH: No, well I don’t think that’s an issue is it Mr Gillespie? The fact that he’s continued to work?

MR GILLESPIE: No, no that was without prejudice.

BENCH: Yes, oh yes.

MR GILLESPIE: We accepted that.

BENCH: Oh yes - no well I accept that part of it.

MR GILLESPIE: Yes.”

63 The conduct of the parties after 1 May 1998 was by their agreement without prejudice and irrelevant to the claim for payment under clause 25. The consequence is that performance of duties at Blackwater and the payment of wages in respect of those services is not to be treated as maintaining or restoring the employment relationship for the purposes of clause 25 or to be the provision of alternative employment for the purposes of the clause.

64 As I have indicated, in my view clause 25(a)(i) and 25(b)(i) relate to a termination of an employee’s services at the mines rescue station at which the employee is employed. The question then arises as to what meaning in that context ought to be given to the phrase “reduction of hands”. The meaning of the term in another industrial award cannot control its meaning in the context of this Award. In my opinion the term in clauses 25(a) and 25(b) means a reduction of hands at a mines rescue station. This follows, in my view, from the operation of clauses 25(a)(ii) and 25(b)(ii) where the obligation to pay the entitlement can be avoided by obtaining employment with another employer, respectively, within a reasonable distance of the place of abode or within the district of the mines rescue station. That is, the clause is concerned with loss of employment at a particular mines rescue station which is the place at which the employee is contracted to work by a reduction of hands at that place. A reduction of hands for the purposes of clause 25(a)(i) occurs when the size of the existing workforce at a mines rescue station is reduced by terminating the services of some or all employees employed at that location. For the purposes of clause 25(b)(i) there is the additional requirement that the reduction of hands is decided upon by the employer “... by reason of technological change (either at the station or at mines in the area served by the station), market forces (either directly affecting the station or indirectly affecting the station by operating on mines in the area serviced by the station) or diminution of reserves at mines in the area served by the station.” In the view that I take as to the meaning of the term in clause 25, it is not necessary that there be a reduction in the total number of employees employed by the Defendant in its business as a whole before there is a reduction of hands as the Defendant contended.

65 The Industrial Magistrate in the view which she took on the issue of termination and mobility, did not deal with the question of the operation of clause 25(b)(i). The material goes no further than establishing that there are no longer underground coal mines being operated in the area previously served by the Booval Mines Rescue Station and that it was for this reason that the station closed. There is no material why the underground mines ceased to operate in the area. To attempt to choose whether it was for any of the reasons specified in clause 25(b)(i), and which, on the present material is to speculate, which the court may not do.

66 The issue before the Industrial Magistrate was whether the services of Mr Parsons had been terminated by a reduction of hands and whether clause 25 of the Award may thereby operate in favour of Mr Parsons. It was not a full hearing of the complaint and summons. Although the claim for the imposition of penalties had been dropped, the balance of the relief sought remained on foot, notwithstanding that it was the hope of the parties that the matter could be resolved between them if it was found that clause 25 operated.

67 In my view, for the above reasons, the Industrial Magistrate erred in dismissing the complaint and summons on the ground that there was no termination of Mr Parsons’ services by the Defendant in the circumstances put before her Worship as agreed facts by the parties. The proper course is to set aside the order dismissing the complaint and to remit the matter to the Industrial Magistrate for hearing in accordance with law and these reasons. Having regard to the way the matter was conducted before the Industrial Magistrate, the issue as to the reason for the closure of the underground coal mines was treated very much as a secondary issue in comparison to the question of whether there had been a termination of Mr Parsons’ employment due to a reduction of hands. If the parties are not in agreement on this issue, the Complainant should be at liberty to call evidence on the issue together with all other issues outstanding under the complaint.

68 Neither party contended that this was an appropriate case for the making of a costs order and none was sought.

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Associate:

Dated: 9 April 1999

Counsel for the Applicant:	D R Kent
Solicitor for the Applicant:	Nall Payne

Counsel for the Respondent:	G C Martin SC
Solicitor for the Respondent:	Minter Ellison

Date of Hearing:	26 November 1998
Date of Judgment:	9 April 1999

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