Finance Sector Union of Australia v Commonwealth Bank of Australia [2004] FCA 257

2004FCA0257 - Corrigendum

FEDERAL COURT OF AUSTRALIA

Finance Sector Union of Australia v Commonwealth Bank of Australia

[2004] FCA 257

INDUSTRIAL LAW – redundancy – whether employee in the circumstances had a right to severance pay – no termination through retrenchment

Commonwealth Bank of Australia v Finance Sector Union of Australia and Another (2002) 125 FCR 9; [2002] FCAFC 193 followed

Finance Sector Union of Australia v Commonwealth Bank of Australia (2001) 111 IR 241; [2001] FCA 1613 cited

Hawkins and Another v Commonwealth Bank of Australia (No1) (1996) 66 IR 322 referred to

Hawkins, Finance Sector Union of Australia v Commonwealth Bank of Australia (No 2) (1996) 70 IR 213 applied

Commonwealth Bank Officers Award 1990 cl 42

FINANCE SECTOR UNION OF AUSTRALIA and JOSEPH ADAMS v COMMONWEALTH BANK OF AUSTRALIA

N 1068 OF 2000

MOORE J

SYDNEY

18 MARCH 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1068 OF 2000

BETWEEN:	FINANCE SECTOR UNION OF AUSTRALIA FIRST APPLICANT JOSEPH ADAMS SECOND APPLICANT
AND:	COMMONWEALTH BANK OF AUSTRALIA RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	18 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The question:

Whether on a true construction of Clause 42 of the Commonwealth Bank of Australia Officers Award 1990, an award of the Australian Industrial Relations Commission, employees listed in annexure K to the Affidavit of Peter Kevin Presdee sworn 27 September 2000 are entitled to severance payments in accordance with sub-paragraph (g) thereof.

be answered “No”.

2. The application be dismissed.

3. Order 2 take effect 28 days from today.

4. The parties have liberty to apply within 28 to vary or revoke order 2.

5. The parties forward to the Court within 14 days a list of the names of members of the representative group.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1068 OF 2000

BETWEEN:

FINANCE SECTOR UNION OF AUSTRALIA

FIRST APPLICANT

JOSEPH ADAMS

SECOND APPLICANT

AND:

COMMONWEALTH BANK OF AUSTRALIA

RESPONDENT

JUDGE:	MOORE J
DATE:	18 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This judgment concerns a preliminary question in an application by the Finance Sector Union of Australia (“the FSU”) and Joseph Adams (collectively “the applicants”) against the Commonwealth Bank of Australia (“the Bank”). The application is a representative proceeding brought by the applicants on behalf of former employees of the Bank who resigned from their employment when the information technology services of the Bank were outsourced and provided to the Bank by a third party. The group members number approximately 572. Amongst other things, it is alleged in the principal application that the Bank breached the Commonwealth Bank Officers Award 1990 (“the Award”) by failing to pay the group members severance payments on the basis that they had been made redundant.

2 The application was filed on 5 October 2000. It was in the docket of another Judge and the matter was fixed for hearing in July 2001. However, the hearing did not proceed to finality as the application was transferred to my docket. This was because another matter (“the Macey matter”), raising broadly similar issues, was already in my docket and due to be heard by me. It was agreed that the further prosecution of the present application would await judgment in the Macey matter. Judgment was given in the Macey matter on 16 November 2001: see Finance Sector Union of Australia v Commonwealth Bank of Australia (2001) 111 IR 241 and [2001] FCA 1613, and judgment given in an appeal on 18 June 2002: see Commonwealth Bank of Australia v Finance Sector Union of Australia and Another (2002) 125 FCR 9 and [2002] FCAFC 193. The judgment of the Full Court determined the meaning of relevant provisions of the Award as they applied in the Macey matter. One factual difference between the circumstances raised in the Macey matter and those raised in this application is that the employees said to have been entitled to payment under the Award in the Macey matter did not resign their employment with the Bank when the information technology services were outsourced, and remained in the employment of the Bank.

3 It is convenient to set out the preliminary question to be answered in this matter:

4 Before setting out relevant provisions of the Award which make intelligible this question, it is necessary to set out in greater detail circumstances in which the members of the group to which this proceeding relates, left the employment of the Bank. The parties co-operated to produce an agreed statement of facts. That agreed statement, including documents which formed part of it, constitute the factual foundation by reference to which the question is to be answered. It is inappropriate that I paraphrase the agreed facts and it is sufficient to set them out in the agreed terms (subject to some minor but immaterial editorial changes). They were:

1. The Bank was, at all material times, a corporation able to be sued.

2. The Award is an award of the Australian Industrial Relations Commission. This document was annexure “A” to the agreed statement of facts.

3. The Bank was, at all material times, and in particular on 10 October 1997, bound to conform to the provisions of the Award.

4. The FSU was, at all relevant times, an organisation registered in accordance with the provisions of the Workplace Relations Act 1996 (Cth) ("the Act").

5. Both the Bank and the FSU were, at all material times, parties to the Award.

6. Mr Adams was, at all material times, a member of the FSU and a person whose employment with the Bank was subject to the provisions of the Award.

7. Prior to 10 October 1997 the Bank employed approximately 1,400 employees in its Information Services Department. Included in these were the group members, the names of whom are set out in a document, excluding those persons who opted out. This document was annexure “B” to the agreed statement of facts.

8. At all material times prior to 10 October 1997, the Bank employed members of the FSU (including all of the group members in these proceedings) in the Information Services Department.

9. At all relevant times prior to 10 October 1997 the Information Services Department of the Bank was in and formed part of the organisational structure of the Bank.

10. Prior to 10 October 1997 the Information Services Department of the Bank covered the whole range of technology services and included communication services, computer (hardware and software, mainframe, desktop and laptop) services, internal email and telephone network services, ATM support services and other services.

11. The Information Services Department included the following sections:

(a) Communications network;

(b) Business solutions;

(d) Account Management & Consulting;

(e) Production Delivery/Operations; and

(f) Business Management.

12. In November 1994, the Bank advised the FSU that it was commencing a review of the Information Services function, with that review to be conducted by the consultancy group KPMG. On 26 March 1995, the Bank and the FSU met to discuss the outcome of that review. At a further meeting between the Bank and the FSU on 3 May 1996, the Bank indicated that it was considering a range of options for the future of the Information Services function, including the establishment of a joint venture, insourcing and outsourcing. Options being canvassed at that time included the provision of Information Services by international entities such as a company known as “Computer Sciences Corporation” or EDS (Australia) Pty Ltd ("EDSA").

13. On or about 11 October 1996 the FSU wrote to the Bank. This letter was annexure “C” to the agreed statement of facts.

14. During the period March to May 1997, the Bank conducted focus group sessions concerning the proposed outsourcing of the Information Services Function with employees working in the Bank’s Information Services Department, including the group members.

15. At each focus group session, a slide presentation was presented to employees by the Bank. This slide presentation was annexure “D” to the agreed statement of facts.

16. At each focus group session, employees were given the opportunity to ask questions.

17. All employees working in the Bank’s Information Services Department including the group members were given an opportunity to attend a focus group session. Most employees attended at least one focus group session.

18. All employees working in the Bank’s Information Services Department including the group members were given an opportunity to discuss privately with Mr Hancock any issue they had concerning the proposed outsourcing of the information services functions of the Bank.

19. In August 1997, the Bank announced an intention to form a strategic technology partnership with an information technology company called Electronic Data Systems Corporation ("EDSC"). This document was annexure “E” to the agreed statement of facts.

20. The Bank and EDSA entered into an agreement called the Information Technology and Telecommunications Services Agreement ("IT&T Agreement"). This document was annexure “F” to the agreed statement of facts. EDSA was to be 65% owned by EDSC and 35% owned by the Bank. The IT&T Agreement was executed by the Bank and EDSA on 26 September 1997.

21. EDSA is 35% owned by the Bank. EDS (Services) Pty Ltd ("EDSS") is a wholly owned subsidiary of EDSA. Where it is not necessary to make a distinction between EDSA and EDSS, and these companies together, or either of them, as the case requires, will be referred to as “EDS”.

22. The Bank and EDSA entered into an agreement called the Human Resources Agreement ("HR Agreement"). This document was annexure “G” to the agreed statement of facts. The HR Agreement was executed by the Bank and EDSA on 26 September 1997.

23. The HR Agreement required EDSA to ensure that an offer of employment, conditional on the commencement of the provision of technology services by EDSA to the Bank, was made to identified persons working in the Information Services Department of the Bank ("Listed Personnel"). The Listed Personnel included each group member.

24. The HR Agreement provided at clause 2.1(b)(i)(A) the following:

(b) The terms and conditions of the offer of employment or engagement must:

(i) in relation to Listed Personnel who are employees:

(A) be no less favourable than the current Bank terms and conditions of those employees considered on an overall basis.

25. The offers of employment to be made to Listed Personnel referred to in paragraph 23 were required, among other things:

(a) to include an entitlement in the event of future redundancy of redundancy benefits equivalent to those provided by the Bank for three years following 10 October 1997 and thereafter the sum of the value of the benefit at that time and redundancy benefits arising from subsequent service with the employer in accordance with its redundancy policies (clause 2.1(b)(1)(E)).

26. The Bank negotiated with EDSA, a guaranteed period of employment of 2 years for Information Services department employees who accepted an offer of employment from EDS (see offer of employment by EDSS, referred to and annexed at paragraph 31 below).

27. The obligations of the Bank and EDSA under the IT&T Agreement were subject to satisfaction (or waiver by the Bank) of a number of conditions precedent. One such condition precedent was that the Listed Personnel, or a number satisfactory to the Bank, would accept the offers of employment made under the HR Agreement.

28. On or about 20 August 1997, at a meeting between officers of the FSU and Mr Simon Lane who represented the Bank, Mr Lane told officers of the FSU that all employees in the Bank’s Information Services Department would be made an offer to resign their employment with the Bank and to take up employment with EDS. Those employees who did not accept an offer with EDSS would continue to be employed by the Bank and would be directed by the Bank to work in the organisation and at the directions of EDS.

29. On or about 25 August 1997 employees of the Bank working in its Information Services Department were given a proposed contract of employment between the employee and EDSS, a pro-forma letter of resignation from the Bank, and details of employment entitlements if the offer of a contract of employment between the employee of the Bank and EDSS was accepted.

30. Employees of the Bank who were on leave on 25 August 1997 were made offers of employment by EDSS upon their return to work.

31. On or about 26 August 1997, each group member was made an offer of employment by EDSS. Except for name and remuneration provisions, this document was annexure “H” to the agreed statement of facts.

32. It was a condition of the offer of employment made by EDSS that Information Services employees resign from the Bank before being able to take up their offer. Besides an incentive payment and an ability to buy EDS shares at a preferential price, the salary offered by EDS grossed up the total entitlements paid by the Bank to each employee, especially in areas where certain conditions (eg cheaper home loans and Rostered Days Off) were not available at EDS. The Bank and EDS stated that the EDS offer would “be equal to or better than” the total package available to Information Services department employees of the Bank.

33. The offer of employment made to each group member by EDSS was conditional on:

(a) finalisation by the Bank and EDSA of the terms of the IT&T Agreement;

and

(b) the group member resigning his or her employment with the Bank.

34. Each group member was entitled to receive an incentive payment if the group member accepted the employment offer made by EDSS by 25 September 1997.

35. The terms and conditions of employment offered by EDSS to each group member included a term which stated:

In the unlikely event that your position becomes redundant and EDS is unable to redeploy you into a comparable position, you will receive severance benefits calculated as follows:-

For your service with the Bank and first three years with EDS:

· six weeks written notice or payment in lieu of notice if you have less than 25 years combined service, or

· nine weeks written notice or payment in lieu of notice if you have more than 25 years combined service, and

· seven weeks salary for the first year of service with either the Bank or EDS, and

· three weeks salary for each subsequent year of service.

Thereafter:

· Your accrued benefits with the Bank and your first three years of service with EDS, plus severance benefits under the applicable EDS redundancy policy that is in operation at the time of severance for the subsequent EDS service.

The maximum redundancy payment is 79 weeks salary, excluding notice period, with a week’s salary being defined at one week’s base salary at the date of redundancy.

36. The Bank was aware of the EDSS offers of employment and the conditions attached to each of those offers.

37. The Bank engaged Watson Wyatt to perform a review of the offers of employment made by EDSS to employees working in the Bank’s Information Services Department.

38. Watson Wyatt prepared a report. This report was annexure “I” to the agreed statement of facts.

39. Watson Wyatt concluded that the terms and conditions of the employment that was to be offered to each group member by EDSS was equal to or better than the terms and conditions of employment with the Bank considered on an overall basis.

40. EDS, with the Bank’s cooperation, knowledge and consent, distributed written communications to Bank employees in the form of

(a) the document titled “Q and A” undated (this document was annexure “J” to the agreed statement of facts);

(b) the document titled “Q and A volume 2” dated 29 August 1997 (this document was annexure “K” to the agreed statement of facts);

(c) the document titled “Q and A volume 3” dated 1 September 1997 (this document was annexure “L” to the agreed statement of facts);

(d) the document titled “Q and A volume 4” dated 3 September 1997 (this document was annexure “M” to the agreed statement of facts);

(e) the document titled “Q and A volume 5” dated 5 September 1997 (this document was annexure “N” to the agreed statement of facts);

(f) the document titled “Q and A volume 6” dated 11 September 1997 (this document was annexure “O” to the agreed statement of facts);

(g) the document titled “Q and A volume 7” dated 16 September 1997 (this document was annexure “P” to the agreed statement of facts);

(h) the document titled “Q and A volume 8” dated 23 September 1997 (this document was annexure “Q” to the agreed statement of facts);

(i) the document titled “Q and A volume 9” dated 2 October 1997 (this document was annexure “R” to the agreed statement of facts);

(j) the document titled “Q and A volume 10” dated 10 October 1997 (this document was annexure “S” to the agreed statement of facts); and

(k) the document titled “Q and A volume 11” dated 16 October 1997 (this document was annexure “T” to the agreed statement of facts);.

41. The Bank distributed to all employees working in the Information Services Department a document in the form of:

(a) the document titled “IS – Special Update” dated 2 September 1997 (this document was annexure “U” to the agreed statement of facts);

(b) the document titled “IS – Special Update 2” dated 4 September 1997 (this document was annexure “V” to the agreed statement of facts);

(c) the document titled “IS – Special Update 3” dated 19 September 1997 (this document was annexure “W” to the agreed statement of facts);

(d) the document titled “IS – Special Update 4” dated 24 September 1997 (this document was annexure “X” to the agreed statement of facts);

(e) the document titled “IS – Special Update 5” dated 25 September 1997 (this document was annexure “Y” to the agreed statement of facts);

(f) the document titled “IS – Special Update 6” dated 2 October 1997 (this document was annexure “Z” to the agreed statement of facts); and

(g) the document titled “IS – Special Update 8” dated 10 October 1997 (this document was annexure “AA” to the agreed statement of facts).

42. The Bank distributed to all employees working in the Information Services Department a document dated 2 September 1997 titled “IS-Special Update” which stated:

Will I be made redundant if I stay with the Bank?

No. If you choose to stay with the Bank you will continue to work in your current role.

43. During the period August to September 1997, the Bank conducted meetings with Information Services employees to discuss the offers of employment made by EDS.

44. The meetings each comprised approximately 100 or more employees of the Bank.

45. During the same period Mr David Moody, an employee of the Bank, conducted separate meetings for smaller groups of Bank employees who were shift workers.

46. EDS, with the Bank’s cooperation, knowledge and consent, convened meetings to explain to Information Services employees different human resources aspects of the alliance arrangement.

47. EDSA, with the Bank’s cooperation, knowledge and consent, operated a telephone helpline service, which was available to all employees working in the Bank’s Information Services Department to assist any employee with any questions that the employee had regarding the offer of employment made by EDSS.

48. During about September 1997 and thereafter the Bank encouraged employees in its Information Services Department to take up employment with EDS.

49. On or about 18 September 1997, the FSU distributed to its members (including group members) a document. This document was annexure “AB” to the agreed statement of facts.

50. Each group member accepted the offer of employment made by EDSS.

51. Each group member signed and returned to EDSS a document. This document was annexure “AC” to the agreed statement of facts.

52. Each group member signed and returned to the Bank a document. This document was annexure “AD” to the agreed statement of facts.

53. With few exceptions, each group member signed and returned the documents referred to at paragraphs 51 and 52 above on or before 25 September 1997.

54. On 26 September 1997, Mr Howard M Morris, an employee of the Bank, wrote to EDSA and EDSC to record collateral agreements made between the Bank, EDSA and EDSC, which included as Attachment C, a Collateral Agreement regarding the Conditions Precedent. This document was annexure “AE” to the agreed statement of facts. For the purposes of this Agreed Statement, reliance is placed only on Attachment C.

55. Each group member resigned from his or her employment with the Bank with effect from close of business 9 October 1997.

56. Before 10 October 1997 over 1,200 employees of the Bank had resigned their employment with the Bank and thereafter commenced employment with EDS.

57. On or about 10 October 1997, the Bank advised those employees of the Bank who did not accept employment with EDS in the terms [of] the document titled “IS – Special Update 8” (This document was annexure “AA” to the statement of agreed facts, referred to at paragraph 41(g) above). These employees were directed by the Bank to work in the organisation and at the direction of EDS.

58. There were 201 Bank employees in the Information Services Department who did not accept offers of employment made by EDS before 10 October 1997. They included 76 employees then on extended leave of absence and 35 employees the detail of whose offers required reconsideration and/or adjustment for various reasons peculiar to those employees.

59. The positions of the employees referred to in paragraph 56 above who commenced employment with EDS were not filled or otherwise occupied by anyone else within the Bank’s employ on or after 10 October 1997.

60. Prior to 10 October 1997, the majority of persons engaged in the Information Services Department of the Bank were employees of the Bank.

61. On and after 10 October 1997 the majority of persons performing information services work for the Bank were employed by EDS.

62. On and from 10 October 1997, the Bank did not have an Information Services department.

63. The provision of technology services to the Bank by EDSA under the IT&T Agreement commenced on 10 October 1997.

64. The work in connection with the provision of technology services has been performed by employees of EDS (including those previously employed by the Bank), and by employees “seconded” by the Bank to EDS.

65. On or about 10 October 1997, the Bank leased to EDSA premises used by the Information Services Department of the Bank prior to 10 October 1997.

66. At all relevant times prior to 10 October 1997:

(a) the group members were employees of the Bank; and

(b) the Bank required group members to perform work for the Bank.

67. Immediately prior to or shortly after 10 October 1997 the Bank created a new department which was known as Group Technology which monitored the performance of the information technology contract performed by EDS and which had previously been the work undertaken by employees of the Bank in its Information Services Department.

68. Group Technology was a small department of some 30 people consisting of a significant number of executive and manager level employees of the Bank, including some previously employed by the Information Services Department. The role of Group Technology included the provision of advice to the Bank as to future technology needs, which was a function which had previously been undertaken by Bank employees in the Information Services Department.

69. Group Technology was given the internal branch number previously used by the Information Services Department, namely, 2059.

70. On and from 10 October 1997, the employees seconded to EDS by the Bank were allocated for administrative purposes within the internal structure of the Bank to Group Technology, with their employment carrying the branch number 2059‑333. The numbers “333” were used by the Bank to identify those employees who were seconded to EDS.

71. Immediately prior to 10 October 1997, Mr Moody was the acting head of the Information Services Department. From 10 October 1997, Mr Moody was the Acting General Manager of Group Technology in the Bank.

72. Each group member commenced employment with EDSS on 10 October 1997.

73. On commencement of employment with EDSS, each group member:

(a) with few exceptions, performed the same duties as performed for the Bank prior to 10 October 1997; and

(b) performed work at the same location as performed for the Bank prior to 10 October 1997.

74. The employees who did not accept the EDSS offer also continued to perform work at the same location as performed for the Bank prior to 10 October 1997.

75. Each group member who has been retrenched by EDSS since 10 October 1997 has been paid severance benefits by EDSS calculated in accordance with the terms specified in paragraph 35 above.

76. On commencement of employment with EDSS, the length of service of each group member with the Bank was recognised by EDSS for the purpose of calculating each group member’s service related benefits, except long service leave.

77. The EDS People Agreement 1999 was an industrial agreement certified by the Australian Industrial Relations Commission on or about 1 June 1999 under section 170LK of theAct. This document was annexure “AF” to the agreed statement of facts.

78. The EDS People Agreement 2002 is an industrial agreement certified by the Australian Industrial Relations Commission on or about 31 May 2002 under section 170LK of the Act. This document was annexure “AG” to the agreed statement of facts.

5 This concludes the agreed facts. For reasons which will be apparent shortly, it is unnecessary to refer to any of the annexures. The relevant clause of the Award, cl 42, was in the following terms:

42 – REDUNDANCY, REDEPLOYMENT AND RETRENCHMENT

(a) Object

This clause has effect in situations where the Bank is considering or implementing change that impacts upon working arrangements and could give rise to potential redundancy and/or redeployment situations.

A key object of this clause is to minimise the potential for industrial disputation.”

(b) Definitions

For the purpose of this clause:

…

(ii) Directly comparable position’ means a position which is at the same classification within the Bank, which does not entail a change in duties significant enough as to be unreasonable in the circumstances of the skills or potential skills (after training in terms of paragraph (d)(viii)) and abilities of the officer concerned and which is at the same location or at another location which is within reasonable commuting distance.

(iii) ‘Redundancy’ means a position redundancy – where work (or a major portion of it):

(1) is no longer required to be performed;

(2) is to be performed at a new location which requires a change in residence of the officer concerned; or

(3) results from re-organisation; changed business practice; technological change; downturn in business; a decision to reduce the number of officers; or a general reduction in classification levels or positions.”

(iv) ‘Retrenchment’ means the termination of employment of an officer as the result of redundancy.”

…

(i) When the Bank commences to review a work area, practice or function that could give rise to redundancy or redeployment situations, the Bank will inform the Unions and make its representatives available for discussions on the proposals.

(ii) Recommendations resulting from the review in terms of paragraph (c)(i) and details of any proposed changes to the work area, functions or practices shall be conveyed to the Unions prior to any final decisions being taken. At this stage, the Bank shall supply to the Unions, details of the staffing structure applicable immediately prior to the commencement of the review and an explanation of the expected impact on that structure of the review findings.

(iii) The Unions shall have the opportunity to comment on the review recommendations within a reasonable time (generally within two working weeks) of the explanation given in terms of paragraph (c)(ii).

(iv) Once the initial review findings and any comments by the Unions have been examined by the Bank, the Unions shall be informed of the Bank’s final decision, redeployment prospects and the potential for retrenchments in terms of subclauses (d) and (e).

(v) The Unions accept the confidentiality of information provided by the Bank in terms of this clause and will not divulge any detail which relates to individual officers until after the Bank has notified the officers concerned.”

(d) Redeployment

(i) Where redundancy situations occur, the Bank will make reasonable efforts to redeploy the officers concerned. These efforts will be assisted by taking maximum advantage of normal staff attrition and curtaining recruitment wherever practicable.

(ii) All due consideration will be given by the Bank to filling vacant positions with suitably qualified officers whose current positions have been declared redundant.

(iii) An officer whose position is declared redundant shall not be entitled to the provisions in subclauses (f), (g), (h), (j) and (k) of this clause if he/ she declines an offer of a directly comparable position as defined by paragraph (b)(ii).”

(iv) Where alternative employment within the Bank is offered;

(1) to a directly comparable position, the Bank’s normal transfer conditions will apply;

(2) in all other cases, at least two weeks will be allowed for the officer to decide whether or not to accept the offer.

(v) Where an officer is offered a directly comparable position his/her actual salary and allowances shall not be reduced.

(vi) If an officer accepts redeployment to an alternative position which is at lower level/classification, he/she will retain his/her existing salary/status and associated benefits.

(vii) An officer who has accepted redeployment will continue to be paid allowances related to his/her former position which thereafter will be of fixed quantum (i.e. not subject to any further adjustment), less the amount of any allowances related to the position newly occupied, unless/until allowances related to the position newly occupied exceeds allowances related to the officer’s former position, in which case only those allowances related to the position newly occupied shall be paid.

(viii) The Bank will undertake where appropriate to train an officer whose position is declared redundant, in new skills to enable him/her to fill an alternative position.

(ix) An offer of redeployment to other than a directly comparable position, shall be in writing with the following information about the proposed job option:

(1) location;

(2) level/classification;

(3) salary;

(4) principal duties.

(x) An officer accepting alternative employment within the Bank, other than to a directly comparable position, will be given a trial period of three months in his/her new position. Should either the Bank or the officer find that the employment is unsuitable, the officer’s services may be terminated without loss of entitlement to retrenchment payments calculated to the date service actually ends.

(e) Selection for retrenchment

(i) Where an officer cannot be redeployed he/she shall be retrenched.

(ii) In a redundancy situation affecting a number of officers engaged in the same work at or about the same classification level and in the same work area, the Bank may call for applicants for retrenchment and determine which officers are to be retrenched.

(iii) Nothing in this clause shall prevent the Bank from inviting an officer to apply for retrenchment or an officer applying to be retrenched.

(iv) The Bank’s right to select officers for retrenchment will be final.

(f) Notice

(i) An officer shall be given four weeks written notice of retrenchment.

(ii) Where an officer elects to terminate his/her employment at the commencement of the period of notice, or during the period of notice; or the Bank so directs, the Bank will pay out the outstanding notice.

(g) Severance payments

(i) Upon termination through retrenchment, in addition to any payment in lieu of notice as specified in paragraph (f)(ii), an officer shall be paid a special lump sum severance payment in full settlement of all claims for additional notice, retrenchment pay, etc, calculated as follows:

(1) Two weeks salary for the first full year of service, or pro rata for officers with less than one full year of service.

(2) Two weeks salary for each subsequent year of continuous service.

(3) Plus a pro-rated payment for each completed month of service in the final part year of service.

(4) The minimum payment under this subclause shall be four weeks salary and the maximum payment under this subclause shall be 48 weeks salary.

(ii) (1) The sum payable under paragraphs (f)(ii) and (g)(i) shall not exceed the sum of pay that the officer would have earned if employment with the Bank had proceeded to the officer’s 65^th birthday.

(2) An officer who has transferred from full-time to part-time employment will have his/her severance payments for part-time work based on hours being worked at the conclusion of each period of part-time employment. Calculation will be pro-rata on the full time salary applicable to the level/classification of the officer immediately prior to retrenchment.

Severance payments related to periods of full time employment will be based on the full time salary applicable to the level/classification of the officer immediately prior to retrenchment.

6 Two judgments of the Industrial Relations Court of Australia considered another industrial agreement between the FSU and the Bank that was, in material respects, in the same terms as cl 42 (though the lettering of the subclauses was different). They were a judgment I gave, Hawkins and Another v Commonwealth Bank of Australia (No 1) (1996) 66 IR 322, and the judgment of the Full Court on appeal, Hawkins and Another v Commonwealth Bank of Australia (No 2) (1996) 70 IR 213. The status of the judgment of the Full Court of the Industrial Relations Court in Hawkins v Commonwealth Bank of Australia (No 2) (supra) was discussed by the Full Court of this Court in the Macey matter. Their Honours said at [23]:

Hawkins (No 2) is of critical significance to the resolution of the present problem. It was decided by a Full Court of the Industrial Relations Court of Australia. From 30 March 1994 that Court took over the jurisdiction previously exercised by this Court (Industrial Relations Reform Act 1993 (Cth) Pt 7). From 25 May 1997 the jurisdiction of that Court was transferred back to this Court (Workplace Relations and Other Legislation Amendment Act 1996 (Cth) s 2 and Schedule 16). At all times, the judges of the Industrial Relations Court of Australia were also judges of this Court. We note that the original application in Hawkins was filed in this Court prior to the transfer of this Court’s jurisdiction to the Industrial Relations Court of Australia. In the circumstances, although not technically binding on this Court, a judgment of a Full Court of the Industrial Relations Court of Australia is entitled to great weight. We are of the view that Hawkins (No 2) should be followed in the present case. Indeed, as the FSU and the Bank were each parties to the decision in Hawkins (No 2), it would not be appropriate for a different construction to be accorded to the same clause (albeit in different instruments) in a later decision without a compelling reason.

7 Their Honours’ observations concerning the two earlier authorities are apt to apply to my consideration of the issues in this matter. Their observations are also apt to apply to their own judgment in the Macey matter which, in addition, is a judgment of a Full Court of this Court which, as a single judge, I am bound to follow.

8 While the submissions of the parties in this matter traversed a number of issues, the two central questions can be put this way. The first is whether the circumstances of the group members in October 1997 satisfied the definition of "redundancy" in par 42(b)(iii) of the Award and the second is whether there had then been a "termination through retrenchment" as provided in par 42(g)(i) of the Award having regard to the definition of "retrenchment" in par 42(b)(iv). If either question is answered in the negative then the answer to the question presently under consideration (set out at [3] above) should be "No".

9 There is, in my opinion, no clear and obvious answer to the first question if it was open to me to consider the matter unaided by authority. I will briefly return to this issue at the conclusion of these reasons. There is, however, a clear and obvious answer to the second question and it is that there was no "termination through retrenchment" of any group member. That conclusion requires that the question presently under consideration be answered "No". I say there is a clear and obvious answer to the second question because it was effectively answered in both Hawkins v Commonwealth Bank of Australia (No 1) (supra) and Hawkins v Commonwealth Bank of Australia (No 2) (supra). For the reasons given by the Full Court in the Macey matter (set out at [6] above) I should adhere to the answer earlier given. In Hawkins v Commonwealth Bank of Australia (No 1) (supra), I said the following about the meaning of "termination through retrenchment" and "retrenchment" at 340-342 (in all the following quotations, I have substituted references to the provision of cl 42 of the Award in the present matter for the references to the provisions of the industrial instrument considered in the Hawkins litigation):

Returning to the specific provisions of the Agreement, the right to severance pay in clause [42(g)] arises when there has been "termination through retrenchment". A matter of some importance in understanding the operation of the Agreement is, in my opinion, whether "termination through retrenchment" includes termination at the initiative of or by an employee. "Retrenchment" connotes termination by the employer. The Macquarie Dictionary relevantly defined "retrench" as:

"to sack or dismiss, as part of an effort to economise."

and "retrenchment" as:

"the act of retrenching; a cutting down or off; reduction of expenses."

The meaning of the word "retrenchment" was considered by Lockhart J in Commissioner for Superannuation v Bayley (1979) 28 ALR 293 at 310-311 and it is reasonably clear that his Honour viewed it as relating to termination by an employer: see 311.1, though he found it unnecessary to determine whether it was for any reasons or for a reason relating to a particular employee. There are other authorities in which the word "retrench", or derivatives of it have been considered, such as Lawrence v Clutha Development Pty Ltd, 10 May 1985, unreported in which Keely J concluded that the word "retrenchment" in an award was a reference to the conduct of the employer only though that conclusion plainly turned on the language of the award under consideration. Other authorities supportive of the word "retrench" meaning termination by an employer, though each turns on the context in which it appears are Chantler v Local Government Superannuation Board (1985) 9 IR 284 at 297, Australian Workers Union of NSW Branch v Roads and Traffic Authority of New South Wales (1989) 29 IR 202 at 210 and 215, Preference to Unionists Case (1977) LBC Current Review 218 at 230, Re Montgomery and Commissioner for Superannuation (1985) 3 AAR 67 at 76-78. See also Re Beverage Packers (Australia) Pty Ltd(1990) VR 446 as to a consideration of "redundant". No authority emerged from my research which suggests "retrench" might mean termination other than by the employer.

As noted earlier, "retrenchment" is defined in clause [42(b)(iv)] as "the termination of employment of an officer as the result of redundancy" though the definition itself provides no real indication as to whether the termination might be by the employee rather than only by the employer. However not only do the words "retrench" and "retrenchment" connote termination by the employer, several provisions in the Agreement are drafted as if "retrench" or "retrenchment" is a reference to termination by the employer.

Clause [42(e)(i)] provides:

"Where an officer cannot be redeployed, he/she should be retrenched."

Clause [42(d)(i)] imposes on the Bank an obligation to endeavour to redeploy an employee in a redundant position. It is thus reasonably clear that clause [42(e)(i)] is intended to require the Bank to retrench an employee if it has failed to do what clause [42(d)] is directed to achieving, that is, the redeployment of the employee by the Bank. So much is apparent, in my opinion, both from the form and language of sub-clause [42(e)(i)] and its subject matter. Both verbs in the sub-clause are in the passive voice and each clause (in a grammatical sense) the sub-clause within has an unstated object, namely "(by) the Bank". The remainder of clause [42(e)] concerns the manner which retrenchment might occur and each proceeds on the basis that retrenchment is by the Bank. Similarly clause [42(f)], which deals with notice, commences in clause [42(f)(i)] with a reference to "an officer to be retrenched" and it is implicit in that sub-clause that it is retrenchment by the Bank having regard to the use of the passive voice and the unstated object.

What may appear to be an exception to the general pattern I am discussing, is found in clause [42(f)(ii)] which speaks of "where an officer elects to terminate his/her employment at the commencement of the period of notice or during the period of notice." This provision, in terms, confers a right on an employee to terminate his or her employment. However the right is a limited one and arises only after notice has been given. Clause [42(f)(i)] requires the Bank to give a specified minimum period of notice of retrenchment which varies according to years of service. Clause [42(f)(i)] requires, in my opinion, the Bank to nominate the date upon which the retrenchment is to take effect, that is, the date upon which the termination of the employment will occur subject to any extension of the period of notice arising from the operation of clause [42(f)(iii)]. Thus the right conferred by clause [42(f)(iii)] is not a right to terminate employment which is conferred on the employee but rather a right the employee has to vary the date upon which the termination earlier decided upon by the Bank, will take effect.

…

I return to a consideration of whether the word "retrench" and variants of it in the Agreement refer only to termination by the Bank. I have already considered the ordinary meaning of the word, the defined meaning, and its apparent meaning in the context of clauses [42(e)] and [42(f)]. This leads to a consideration of clause [42(d)(x)] which provides that "an officer's services may be terminated....".

It is the applicants' contention that this provision entitles the employee, who finds the alternative employment unsuitable, to terminate his or her employment. In my opinion, the clause confers no such right. The second sentence in clause [42(d)(x)] serves two functions. The first is to identify the criterion used to determine that the attempt by the Bank to redeploy the employee by offering alternative employment which is not directly comparable, has failed. The criterion is that either or both the Bank and the employee find that the employment in that position is unsuitable. The second function is to make clear that when, as a result of the failed redeployment, the employee is retrenched, the employee is entitled to severance pay notwithstanding that immediately before the retrenchment, the employee was occupying a position that was not one that involved a position redundancy. In making this last observation I am assuming, as is likely often to be the case, that the alternative employment is in a position that has existed for some time and is unaffected by the change that led to the position redundancy or it is a position that has emerged from the change itself. This second function is to resolve any doubt about whether the employee is still in a redundant situation.

Not only is this, in my opinion, the plain purpose of clause[42(e)(x)], the language of the clause is quite equivocal as whether it confers a right of an employee to terminate his or her employment. The compound verb "may be terminated" is in the passive voice and there is not real indication of who it is that may terminate the employment. The construction of the clause advanced by the applicants is at odds with the consistent use elsewhere in the Agreement of the word "retrench" or variants of it which, as I have already discussed, is a reference to termination by the Bank.

10 The Full Court of the Industrial Relations Court in Hawkins v Commonwealth Bank of Australia (No 2) (supra) addressed this issue as well. Their Honours said at 222:

We do not think there can be any real doubt that in the drafting of the Agreement the word "retrenchment" means termination by the employer of the employment of an officer as the result of redundancy, and that clause [42(e)(i)] means that where an officer cannot be redeployed he or she shall be retrenched by the Bank. However we do not think this leads to the conclusion that where, at a point in time contemplated by clause [42(d)(x)], an officer of the Bank finds that the employment is unsuitable, the Bank has a discretion not to retrench the officer.

11 In the present case, the employment of each of the group members was terminated by their own act of resignation at the point in time when the Bank might otherwise have redeployed or retrenched them. There was no termination by the Bank and accordingly (by applying the reasoning in Hawkins v Commonwealth Bank of Australia (No 1) (supra) and Hawkins v Commonwealth Bank of Australia (No 2) (supra)) there was no "termination through retrenchment" for the purposes of cl 42(d)(i) of the Award.

12 I accept that the definition of "retrenchment" contains no reference to termination by the Bank, a matter relied upon by the applicants in this matter. However that was also a feature of the industrial instrument considered in the Hawkins litigation and was a matter noted in the third paragraph of the passage quoted from Hawkins v Commonwealth Bank of Australia (No 1) (supra) at [9] above. It may be that the construction of "retrenchment" adopted in the Hawkins litigation was too narrow in the sense that it excluded the possibility that the redundancy provisions were intended to apply (by creating an obligation on the Bank to retrench and/or an entitlement to severance payments) in circumstances where an employee was given no effective choice but to resign at a time when their position became redundant. However, in the present case, the agreed facts do not rise to a point where a conclusion is open that all or any of the members of the representative group, were in that position. On the agreed facts, they could remain in the employment of the Bank.

13 I also accept that the Full Court in Hawkins v Commonwealth Bank of Australia (No 2) (supra) did not suggest the conclusion I reached in Hawkins v Commonwealth Bank of Australia (No 1) (supra) about the way Hawkins’ employment came to an end was wrong, namely that Hawkins had resigned, another matter relied on by the applicants in this proceeding. However in Hawkins v Commonwealth Bank of Australia (No 2) (supra), the Full Court effectively decided that the Bank had been under an obligation to retrench Hawkins and pay him severance pay and on that approach, the fact that he had resigned was not critical.

14 I do not consider it is open to me, having regard to the reasoning of the Full Court in the Macey matter, to adopt an approach analogous to that adopted by the Full Court in Hawkins v Commonwealth Bank of Australia (No 2) (supra) even if it was otherwise an available approach. I doubt that it is an available approach because the reasoning of the Full Court in Hawkins v Commonwealth Bank of Australia (No 2) (supra) concerned a resignation occurring at a time after the Bank was obliged to retrench Hawkins notwithstanding they had both (Hawkins and the Bank) been testing redeployment. In that matter it was not a resignation terminating the employment when the redundancy situation arose with the result that either there could be no termination by retrenchment by the Bank or redeployment.

15 But even if I am wrong and have approached the decision of the Full Court in Hawkins v Commonwealth Bank of Australia (No 2) (supra) too narrowly, it would not alter the result in this case. That is because, as I understand the reasoning of the Full Court in the Macey matter, none of the employees of the Bank's Information Services Department were, on or immediately before the 10 October 1997, in a redundancy situation. I do not see how I can reason (in the face of the Full Court's conclusion in the Macey matter) that even though the Bank employees who remained in the employment of the Bank had not been in a redundancy situation on or immediately before 10 October 1997, Bank employees who did not remain in the employment of the Bank (because they resigned) had been in a redundancy situation on or immediately before 10 October 1997. Each group was in the same situation, but responded differently.

16 The order of the Court should be that the question posed, be answered "No". I also propose to make an order dismissing the application effective 28 days from the date of this judgment. If either party wishes to have that order varied or revoked, they can exercise a liberty to apply within the 28 days. I adopt this approach to avoid a further hearing and on the assumption the parties are content for me to make the dismissal order. I do so without having heard from the parties and without having considered any arguments why I should not dismiss the proceedings. I will reconsider the dismissal order if either party opposes it being made.

17 It will also be necessary to frame a supplementary order to give effect to s 33ZB(a) of the Federal Court of Australia Act 1976 (Cth). The parties should forward to the Court within 14 days of today a list of the names of members of the representative group.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated: 18 March 2004

Counsel for the Applicant:	S Rothman SC with P Ginters

Solicitor for the Applicant:	Geoffrey Edwards & Co

Counsel for the Respondent:	R J Ellicott QC with J J Fernon SC

Solicitor for the Respondent:	Freehills

Date of Hearing:	8, 9 March 2004

Date of Judgment:	18 March 2004

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