Finance Sector Union of Australia v Commonwealth Bank of Australia [2005] FCA 314

FEDERAL COURT OF AUSTRALIA

Finance Sector Union of Australia v Commonwealth Bank of Australia

[2005] FCA 314

INDUSTRIAL LAW – alleged breach of enterprise bargaining agreement by retrenchments – construction of enterprise agreement – previous statement of claim disallowed – application for leave to file further statement dismissed as not disclosing reasonable cause of action upon true construction of agreement – further submissions on costs invited

Workplace Relations Act 1996 (Cth) s 347

Finance Sector Union of Australia v Commonwealth Bank of Australia [2004] FCA 898 referred to

Amcor Limited v Construction, Forestry, Mining and Energy Union & Ors [2005] HCA 10 referred to

Shackley v Australian Croatian Club Ltd (1996) 141 ALR 736 referred to

Commonwealth v Construction Forestry Mining and Energy Union (2003) 129 FCA 271 referred to

FINANCE SECTOR UNION OF AUSTRALIA v COMMONWEALTH BANK OF AUSTRALIA

N 1303 OF 2002

CONTI J

30 MARCH 2005

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1303 OF 2002

BETWEEN:	FINANCE SECTOR UNION OF AUSTRALIA APPLICANT
AND:	COMMONWEALTH BANK OF AUSTRALIA RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	30 MARCH 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The Further Amended Statement of Claim filed on 27 August 2004 be struck out.

2. The proceedings be dismissed.

3. Both parties to file and serve further written submissions upon the issue of costs within 14 days.

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 1303 OF 2002

BETWEEN:

FINANCE SECTOR UNION OF AUSTRALIA

APPLICANT

AND:

COMMONWEALTH BANK OF AUSTRALIA

RESPONDENT

JUDGE:	CONTI J
DATE:	30 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Background

1 On 30 July 2004 I ordered that the amended statement of claim of the Finance Sector Union of Australia (‘the Union’) against Commonwealth Bank of Australia (‘the Bank’), filed on 9 April 2003, be struck out upon the basis that as then framed, it did not disclose a viable cause of action : see Finance Sector Union of Australia v Commonwealth Bank of Australia [2004] FCA 898. That was in broad summary because it propounded issues as to the redundancy of three former employees of the Bank, without pleading the material facts and circumstances necessary to demonstrate the crystallisation of redundancy in respect of each of those employees. I granted leave to the Union to replead within 28 days. In reaching that conclusion, I accepted as soundly conceived the Bank’s interpretation of clause 18 of the Commonwealth Bank of Australia Retail Banking Services Enterprise Bargaining Agreement 2002 (‘EBA’), to which the Bank and the Union are parties. As I then observed, it would appear that the proceedings are in the nature of a test case for the imposition of a penalty upon the Bank pursuant to s 178 of the Workplace Relations Act 1996 (Cth) (‘the Act’). The EBA was certified by the Australian Industrial Relations Commission pursuant to s 170LT of the Act on 9 August 2002.

2 As I further observed at the threshold of my previous reasons for judgment, the Bank is bound to comply with the provisions of the EBA in respect of those of its employees engaged in retail banking services whose employment is subject to the Commonwealth Bank of Australia Employees Award 1999 (‘the Award’), and that pursuant to clause 7 of the EBA, the latter instrument is required to be read and interpreted in conjunction with the Award, provided always that where there is inconsistency between the EBA and the Award, the EBA is to prevail to the extent of the inconsistency.

3 Subsequently on 27 August 2004, and notwithstanding that leave to replead had already been granted, the Union filed a notice of motion for leave to amend its prior pleading by way of a further amended statement of claim, which I will hereafter abbreviate as the ‘revised S/C’. The amendments were summarised by senior counsel for the Union as pleading additionally as follows:

(i) the existence of a redundancy situation within the meaning of clause 18 of the EBA that affected either the whole of the Bank’s retail banking services, or in the alternative affected three particular areas within the Bank’s retail banking services; and

(ii) that each of the three employees was affected by a redundancy situation and had her or his employment terminated by reason of that redundancy situation, in breach of clause 18 of the EBA, even though her or his particular position had not been declared redundant.

In addition to the filing of the notice of motion, the revised S/C was also accepted by the Court for filing on the same day as the application. In response to this revised S/C, the Bank applied to the Court by notice of motion filed on 6 September 2004 for dismissal of the proceedings pursuant to Order 20 Rule 2 of the Federal Court Rules.

The facts and circumstances repleaded by the Union

4 The facts and circumstances repleaded by the Union repeat many segments of its preceding amended statement of claim the subject of the Bank’s previous strike-out application (to which I will hereafter refer as the ‘prior S/C’), and additionally comprise a large amount of further material. It is appropriate that I identify the previous material pleaded and still maintained, and extract what has since been added or supplemented by the revised S/C. As in the case of the prior S/C, the cause of action the subject of the revised S/C is focused upon the EBA, and what is asserted to be the further significance thereof in relation to the same three employees who had been engaged in the Bank’s Retail Banking Services sector, namely Ms Burns, Ms Cashion and Mr Tancred. Each of those persons was apparently selected by the Union as an exemplification of the circumstances of the Bank’s employees generally. After repeating reference to clause 5 of the Award and clause 7 of the EBA, the revised S/C averred by par 13 thereof that the effect of the EBA was as follows:

‘Effect of the EBA

13. The effect of the EBA is as follows:

a. A “redundancy” is defined in clause 18.2.6;

b. Upon the Bank implementing a change that gives rise to one or more redundancies (as defined in clause 18.2.6) there is a redundancy situation;

c. Where there is a redundancy situation the Bank is required to apply the terms of clause 18 of the EBA;

d. In particular, termination of employment arising from a redundancy situation in respect of employees covered by the EBA must be done in accordance with clause 18 of the EBA and cannot be done otherwise than in accordance with clause 18 of the EBA; and

e. Clause 18 of the EBA only permits the Respondent to terminate the employment of an employee for reason of redundancy where the employee held a position that was redundant (as defined in clause 18.2.6), aside from circumstances where the Respondent has invited applications for retrenchment;’

It may be noted that the expressions ‘the Bank’ and ‘the Respondent’ were used interchangeably by the applicant. Par 13 of the revised S/C, and subpar (e) thereof in particular, reflect the theme of the amendments made to the prior S/C, as foreshadowed in [3] above. The Particulars to the new par 13 will shortly be identified and/or extracted.

5 For comparison, the prior S/C pleaded the effect of the EBA in the following terms:

‘13. The effect of the EBA is as follows:

a. Termination of employment for reason of redundancy in respect of Employees covered by the EBA must be done in accordance with clause 18 of the EBA and cannot be done otherwise than in accordance with clause 18 of the EBA;

b. Pursuant to clause 18 of the EBA the Respondent cannot terminate the employment of an employee for reason of redundancy except where the employee held a position that became redundant and was abolished by the respondent immediately prior to the termination of employment aside from circumstances where the Respondent has invited applications for retrenchment;

c. Within the meaning of clause 18 of the EBA a redundancy does not arise in respect of a particular employee in circumstances where the work (or a major portion of it) of that employee’s position is still required to be performed, and;

d. Pursuant to clause 18.4, where a redundancy situation occurs, the Bank must make reasonable efforts to redeploy an employee before retrenching that employee.’

6 The particulars of ‘the effect of the EBA’, as pleaded by the replacement par 13 set out in [4] above, comprise clauses 18.1.1, 18.2.6, 18.2.7, 18.4.1, 18.4.2, 18.4.4 and 18.5 of the EBA; clause 18.1.1 provided the following opening explanation:

‘The following provisions have 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.’

Clause 18.2.6 of the EBA was extracted in full in [10] of my prior reasons for judgment, as was also clause 18.2.7, and clauses 18.4.1, 18.4.2 and 18.4.4 of the EBA were extracted in full in [13] of those reasons for judgment. Part of clause 18.5, namely clauses 18.5.1 to 18.5.4 (including the introductory segment of clause 18.5) was extracted in full in [14] of my prior reasons for judgment.

7 Under the heading ‘The Bank’s system of operation’, the Union pleaded by the revised S/C new paras 14 to 16 inclusive, reading as follows (references to ‘Respondent’ continued to be of course to the Bank):

‘14. Every position within the Respondent’s Retail Banking Services has a unique position number; and

a. when the Respondent determines to create a position, the new position is given a new position number; and

b. when the Respondent determines to abolish a particular position, the particular position abolished can be identified by its unique position number.

15. At all relevant times the Respondent’s Retail Banking Services involved the operation of various retail branches across Australia, organised, inter alia, on the following basis:

a. Retail Banking Services had various geographic regions called Regions and each Region was made up of smaller geographic areas called Areas; and

b. Each Area contained a number of retail branches;

16. In June and July 2002 the Respondent’s Retail Banking Services contained, inter alia, the following Areas, which in turn contained, inter alia, the following retail branches:

a. the Northern Tasmania Area, which contained, inter alia, the Launceston Branch located at Brisbane St, Launceston and the St John St Branch at St John St, Launceston ;

b. the South Coast and Southern Highlands Area, which contained, inter alia, the Nowra branch;

c. the Riverina Area, which contained, inter alia, the South Wagga Wagga branch.

8 Under the heading ‘Termination of employment’, the Union’s revised S/C further read as follows (again references to ‘Respondent’ continued to be the Bank):

‘17. In June 2002 the Respondent:

a. conducted a review of transaction volumes at its retail branches (“the 2002 Quota Review”); and

b. assessed what would be the appropriate level of staffing in its retail banking network based on those transaction volumes.

18. In July 2002 the Respondent:

a. determined that as a consequence of the 2002 Quota Review there would be an overall reduction in the number of employees employed by the Respondent in Retail Banking Services; and

b. determined that as a consequence of the 2002 Quota Review positions at its retail branches would be abolished.’

9 After repeating what was pleaded by the prior S/C as to the provision by the Bank to some of its employees engaged in its Retail Banking Services operations of a standard template letter, which notified them to the effect that the Bank was unable to offer them a permanent position, and further that if a suitable redeployment opportunity was not identified by the Bank over the next two weeks, they would thereafter be retrenched, the revised S/C pleaded the following further matters:

‘20 On about 18 July 2002 the Respondent advised the Applicant that as a consequence of a quota review it had determined that there would be a reduction in the number of employees employed by the Respondent in Retail Banking Services and in particular:

a. that it had determined to abolish 201 branch management positions, each of which were identified by, inter alia, their location, title and position number; and

b. that it had determined that there would also be a reduction in the number of non-management positions, the details of which had not been determined.

PARTICULARS

Letter from Commonwealth Bank to Applicant dated 18 July 2002

21. On 7 August 2002 and 27 August 2002 the Respondent advised the Applicant of the particular non-management positions that the Respondent had determined to abolish as a result of the 2002 Quota Review, namely 649 specific positions which were each identified by, inter alia, their location, position title and position number.

PARTICULARS

Letters from Commonwealth Bank to Applicant dated 7 August 2002 and 27 August 2002

22. As a consequence of the 2002 Quota Review the Respondent determined in July 2002 to:

a. abolish various particular positions in the Northern Tasmania Area, including the position of Assistant Branch Manager of the St John St Branch, a position occupied by Ms Peta Rogers, and including particular positions at the Launceston Branch, located at Brisbane St, Launceston;

b. abolish various particular positions in the South Coast and Southern Highlands Area, including a position of Relieving Officer in Area Administration, being a position held by Ms Jo Betts; and

c. abolish various particular positions in the Riverina Area, or in the alternative to not abolish any particular positions in the Riverina Area but to reduce the number of employees in the Riverina Area.

23. As a consequence of the matters pleaded in paragraphs 17-21 above there was a redundancy situation within the meaning of Clause 18 of the EBA that affected the whole of the Respondent’s Retail Banking Services.

24. Further, or in the alternative, as a consequence of the matters pleaded in paragraphs 17-22 above there was a redundancy situation within the meaning of Clause 18 of the EBA that affected the following Areas within the Respondent’s Retail Banking Services’ operations:

a. the Northern Tasmania Area;

b. the South Coast and Southern Highlands Area; and

c. the Riverina Area.

25. As a consequence of there being a redundancy situation or redundancy situations the Respondent was obliged and required to observe the requirements of clause 18 of the EBA in respect of any decision to terminate the employment of any employee as a consequence of such a redundancy situation.

26. During August and September 2002, as a consequence of the 2002 Quota Review, the Respondent terminated the employment of a number of its employees employed in Retail Banking Services, including the Three Employees.

27. The Respondent purported to terminate those employees as a result of redundancy.’

10 The revised S/C next repeated the averments of the prior S/C as to the purported termination of the employment of the Bank’s former employees Ms Burns, Ms Cashion and Mr Tancred by letters of 16 September 2002, 14 August 2002 and 6 September 2002 respectively, being terminations expressed to take effect as at the dates of individual receipt of those letters; the revised S/C assigned the following significance to the preceding averments of the revised S/C, under the heading ‘Terminations in breach of the EBA’:

‘30. In the circumstances pleaded above the termination of employment by the Respondent of each the Three Employees was a breach of clause 18 of the EBA.

PARTICULARS

a. Any decision to terminate employment of employees affected by a redundancy situation could only be made in accordance with clause 18 of the EBA;

b. Pursuant to clause 18 of the EBA in a redundancy situation the Respondent is not permitted to terminate on the grounds of redundancy the employment of an employee whose position is not redundant, except where there is a call for volunteers;

c. In the case of each of the Three Employees the Respondent breached clause 18 of the EBA by terminating their employment on the purported ground of redundancy in circumstances where the Respondent had not determined to make their position redundant and where the Respondent still required the work done by the Employees to be performed.

d. In respect of Ms Sharron Cashion:

(i) immediately before her employment was terminated on the purported ground of redundancy she held the position of Assistant Branch Manager at Launceston Branch, located at Brisbane St, Launceston, being position number 20025629;

(ii) at that time the position of Assistant Branch Manager at Launceston Branch, located at Brisbane St, Launceston was not abolished and as such that position was not redundant within the meaning of clause 18 of the EBA;

(iii) immediately before her employment was terminated the position of Assistant Branch Manager at the St John St Branch, located at St John St, Launceston was abolished as a consequence of the 2002 Quota Review;

(iv) at that time Ms Peta Rogers held the position of Assistant Branch Manager at the St John St Branch, located at St John St, Launceston;

(v) as the Respondent had determined to:

I) abolish positions in Retail Banking Services; and further or in the alternative

II) abolish positions in the Northern Tasmanian Area, including in the Launceston Branch; and further or in the alternative

III) terminate Ms Cashion’s employment as a consequence of a decision made as part of the 2002 Quota review to reduce the number of employees in the Northern Tasmanian Area and/or as a consequence of a decision to abolish a position that was not her position;

Ms Cashion was affected by a redundancy situation;

(vi) Ms Peta Rogers was appointed to fill the ongoing position of Assistant Branch Manager at Launceston Branch, located at Brisbane St, Launceston, upon that position becoming vacant as a result of the termination of employment of Ms Sharron Cashion;

(vii) Ms Cashion did not volunteer to be retrenched;

(viii) the Respondent chose to terminate the employment of Ms Cashion on the purported ground of redundancy knowing that her position was not redundant; and

(ix) the termination of Ms Cashion’s employment in those circumstances was in breach of clause 18 of the EBA.

e. In respect of Mr Tim Tancred:

(i) immediately before his employment was terminated on the purported ground of redundancy he held the position of Personal Banker at Nowra Branch, being position number 20009830;

(ii) the position held by Mr Tancred was not abolished and as such that position was not redundant within the meaning of clause 18 of the EBA;

(iii) shortly before Mr Tancred’s employment was terminated a position of Relieving Officer in Area Administration in the South Coast and Southern Highlands Area, being a position held by Ms Jo Betts, was abolished as a consequence of the 2002 Quota Review;

(iv) as the Respondent had determined to:

I) abolish positions in Retail Banking Services; and further or in the alternative;

II) abolish positions in the South Coast and Southern Highlands Area, including in the Nowra Branch; and further or in the alternative;

III) terminate Mr Tancred’s employment as a consequence of a decision made as part of the 2002 Quota review to reduce the number of employees in the South Coast and Southern Highlands Area and/or as a consequence of a decision to abolish a position that was not his position;

Mr Tancred was affected by a redundancy situation;

(v) Ms Jo Betts was appointed to fill the ongoing position of Personal Banker at Nowra Branch, upon that position becoming vacant as a result of the termination of employment of Mr Tancred;

(vi) Mr Tancred did not volunteer to be retrenched;

(vii) the Respondent chose to terminate the employment of Mr Tancred on the purported grounds of redundancy knowing that his position was not redundant; and

(viii) the termination of Mr Tancred’s employment in those circumstances was in breach of clause 18 of the EBA.

f. In respect of Ms Judith Burns:

(i) immediately before her employment was terminated on the purported ground of redundancy she held the position a Customer Service Officer at the Respondent’s South Wagga Wagga Branch, being position number 20010096;

(ii) at that time Ms Burn’s position of Customer Service Officer at the Respondent’s South Wagga Wagga Branch was not abolished and as such that position was not redundant within the meaning of clause 18 of the EBA;

(iii) as the Respondent had determined to abolish positions and/or reduce the number of employees in Retail Banking Services or in the alternative in the Riverina Area, Ms Burns was affected by a redundancy situation;

(iv) as the Respondent had determined to:

I) abolish positions in Retail Banking Services; and further or in the alternative;

II) abolish positions in the Riverina Area, including in the South Wagga Wagga Branch; and further or in the alternative;

III) terminate Ms Burns’ employment as a consequence of a decision made as part of the 2002 Quota review to reduce the number of employees in the Riverina Area and/or as a consequence of a decision to abolish a position that was not her position;

Ms Burns was affected by a redundancy situation;

(v) Ms Burns did not volunteer to be retrenched;

(vi) the Respondent chose to terminate the employment of Ms Burns on the purported ground of redundancy knowing that her position was not redundant; and

(vii) the termination of Ms Burn’s employment in those circumstances was in breach of clause 18 of the EBA.’

11 The revised S/C thereafter repeated the claims of the Union for relief by way of imposition of a penalty for breach of clause 18 of the EBA, and for payment of the penalty to the Union pursuant to ss 178 and 356 of the Act.

The Union’s submissions in support of its present application for leave to amend and in opposition to the Bank’s strike-out application

12 The Union’s submissions in support of its present application for leave to amend, outlined by the Union to the extent appearing in summary in [3] above, were comprehensive. They took the form of written submissions in chief, followed later by lengthier written submissions in reply, and subsequently oral submissions in reply respectively to the Bank’s written and oral submissions. The oral addresses of the parties occupied the morning of 25 November 2004 and tended to ‘fine tune’ the respective written submissions. The Union’s written submissions were wide-ranging and comprehensive, and accommodated or largely accommodated the essence of the Union’s subsequent oral submissions made to the Court. The Bank raised at the threshold the contention that leave had only been granted to the Union to replead the issues relating to sub-par 22(b) of the prior S/C. I do not think however that the Union was so restricted and I have therefore reviewed the essence of the Union’s revised S/C. The focus of the Union’s submissions was understandably upon clause 18 of the EBA, the heading to which is Redundancy, Redeployment and Retrenchment; that comprehensive clause extends over seven pages of the EBA, and thus included the critical segment headed Redeployment embodying the subclauses of clause 18.4, and that subsequently headed Selection For Retrenchment embodying the subclauses of clause 18.5.

13 The Union at the outset explained that the revised S/C has pleaded specifically the existence of a redundancy situation ‘in relation to the three former employees’, thereby referring of course to the above identified Ms Burns, Ms Cashion and Mr Tancred, and thus purportedly addressed the complaints raised by the Bank in support of its prior strike-out application. Clause 18.4.1 commences ‘Where redundancy situation occur…’ and clause 18.5.2 commences ‘In a redundancy situation affecting a number of employees engaged in the same work at or about the same classification level and in the same work area…’. In [8] of my earlier reasons for judgment of 30 July 2004, I recorded the Bank’s original submission that the existence of a redundancy situation (being the critical phraseology appearing variously in clause 18 of the EBA as reproduced and discussed in [12]-[14] of my said earlier reasons) had not been pleaded to have been put in place in relation to any one of those former employees of the Bank. Emphasis was placed by the Union upon the circumstances that the order sought by the Bank’s notice of motion to strike out the prior S/C was based largely upon the Bank’s proposition or thesis that ‘… it is not a breach of clause 18 of the [EBA] for the [Bank] to treat the employees in question as if they were in a redundancy situation if in fact they were not’.

14 The Union explained that its purpose in seeking leave to further amend the statement of claim by the revised S/C was that it ‘did not want to be met on application for leave to appeal from an interlocutory judgment with the suggestion that the decision was one that had been given in circumstances where our case had not been properly pleaded, and where [the Court], because of deficiencies in pleading, was not really called upon to come to grips with some of the matters that we were anxious [to be] dealt with’. Senior counsel for the Union further explained that ‘[i]f… your Honour is of the view that your Honour’s decision, having the appearance of a global decision about the [EBA], was one [whereby] your Honour was not required to address the particular issues which we desire to focus attention on in the amended statement of claim, then the appropriate outcome of today’s proceeding would be that leave would be given to amend the statement of claim so that those issues could then be addressed by your Honour’. As summarised by the Union by reference to the revised S/C, ‘[t]he new pleading meets the complaint identified by the [Bank]’, and hence the Union’s present motion for leave to amend. The Bank’s response by its notice of motion of 6 September 2004 is that the proceedings should be dismissed under Order 20 Rule 2 of the Federal Court Rules, though that response necessarily required my consideration of the revised S/C in some depth.

15 In the course of the Union’s summary of the revised S/C, the Union appeared to acknowledge that contravention of clause 18 of the EBA ‘… must be predicated upon the circumstance contemplated in Subclause 18.1.1 having crystallised, namely the circumstance constituting or involving a redundancy situation created by the [Bank]’, and hence that ‘… in the absence of any pleading of a redundancy situation no breach of clause 18 of the EBA could be asserted’. I was referred by the Union to [18], [23] and [24] of my previous reasons for judgment, the contents whereof being said to constitute the bases upon which I reached my conclusions expressed in [30]-[31] of those reasons. It was contended by the Union that ‘[a] reading of the judgment as a whole does not support the [Bank’s] contention that leave to re-plead was confined to issues relating to paragraph 22(b) of the [a]mended [s]tatement of [c]laim namely the alternative claim that the [Bank] breached [c]lause 18.4 of the EBA by failing in respect of the three employees to make reasonable efforts to redeploy those employees before retrenching them’. More importantly is that the revised S/C pleads specifically the existence of ‘a redundancy situation’ in relation to the three particular named employees. I observe that clause 18.4.1 conditions the Bank’s obligation to ‘make reasonable efforts to redeploy the employees concerned’ upon the occurrence of ‘redundancy situations’, clause 18.1.1 having commenced the lengthy clause 18 segment of the EBA by the explanation ‘[t]he following provisions have 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’.

16 I would next record that in asserting the revised S/C met the principal pleading complaints identified by the Bank on the occasion of the earlier strike-out application, the Union explained that the subject three employees had been each in a redundancy situation ‘… because they were employed in an area where the Bank had decided to make an across-the-board reduction in staff [and] were affected by that redundancy notwithstanding that their particular position [in each case] was not redundant’. Thus the Union tendered for resolution an issue as to the operation of the EBA, and clause 18 thereof in particular, being of course headed Redundancy, Redeployment and Retrenchment. That however was the description given by the Union to the circumstances in which the three abovenamed employees had found themselves to be placed, prior to their departure (to use a neutral term) from the Bank.

17 The ‘key assertion’ of the revised S/C was said by the Union to be contained in the newly introduced sub-par 13(e) thereof (extracted in [4] above), being that ‘[c]lause 18 of the EBA only permits the [Bank] to terminate the employment of an employee for reason of redundancy where the employee held a position that was redundant (as defined in clause 18.2.6), aside from circumstances where the [Bank] had invited applications for retrenchment’. It was submitted by the Union that while the Court had ‘clearly accepted’ the Bank’s interpretation of clause 18 to the extent material to the Union’s former complaint, being a complaint that did not (the Union’s emphasis) involve in terms a contention that a redundancy situation existed, it was ‘by no means clear’ that the Court had finally determined the Union’s contention advanced in the said subpar 13(e) of the revised S/C, based as it was on the assertion that there existed a redundancy situation affecting the three employees (clause 13(e) pleading of course the pre-condition ‘where the employee held a position that was redundant’ in the circumstances therein described).

18 It was fairly acknowledged by the Union at the outset that ‘[i]n circumstances where the pleading [of the prior S/C] contained no active assertion of a redundancy situation, the Court did not have to address the detailed written submissions of the [Union] filed on 28 June 2004 at paragraphs 33 to 47’ upon the operation of clauses 18.2.7, 18.4.4 and 18.5.2 of the EBA. Submissions were however made by the Union in the context of the present application of the EBA as to the operation of those three clauses of the EBA as follows:

(i) as to clause 18.2.7, the same defines ‘retrenchment’ as meaning ‘the termination of employment of an employee as the result of redundancy’ (the latter emphasis was that of the Union); it is to be borne in mind in that regard that the reference to redundancy picks up the meaning thereof contained in the preceding clause 18.2.6 definition, which I have already extracted in [7] above;

(ii) as to clause 18.4.4, the same was said to so operate that, ‘upon a position being redundant, if redeployment is not possible, the approach required would be to retrench that employee’ (the emphasis on ‘that’ was made by the Union);

(iii) as a general proposition, it is the person in a redundancy position who is to be retrenched, subject to the express exception in clause 18.5.2, ‘which provides for the Bank to call for volunteers for retrenchment and determine from such employees who is to be retrenched’; it is to be further borne in mind however that a person in a redundancy position may alternatively be deployed in the circumstances predicated in clause 8.4;

(iv) the exception (so-called by the Union) the subject of clause 18.5.2 provides for ‘a right to the [Bank] to determine employees from a pool made up of the applicants for voluntary retrenchment and the employees whose positions have been abolished’; so much (if correct) was said by the Union ‘would not be interpreted as giving the [Bank] a wider right to select from any of those employees doing the same work with the same classification level in the same work area’;

(v) ‘subject to the exception in respect of volunteers set out in Clause 18.5.2, the EBA requires that the employee whose position is redundant is retrenched (if they are unable to be redeployed) and not any other employees’; and

(vi) ‘if Clause 18 permitted the [Bank] in a “redundancy situation” to terminate any employee, whether their position was redundant or not, there would be no need for the exception set out the (sic) 18.5.2’.

It may be observed at once that at least a major predication of the foregoing submissions is that clause 18.5.2 constitutes or involves an ‘exception’. That description, indeed predication, is I think inconsistent with the circumstance that clause 18.5.2 confers upon the Bank an authority of merely a discretionary nature, namely that the Bank may call for applicants for retrenchment and determine which employees are to be retrenched; it stands in contrast with the expression the Bank will appearing in the preceding clauses 18.4.1 and 18.4.4.

19 The foregoing submissions were nevertheless emphasised by the Union not to have been addressed, or addressed in terms, in the context of [31] of my reasons for judgment of 30 July 2004, where I concluded that I had ‘accepted as soundly conceived the Bank’s interpretation of clause 18 of the EBA to the extent material to the Union’s present complaint’, and further that ‘clause 18 does not operate to prohibit the Bank from retrenching an employee whose position of employment has not been abolished’. It was however acknowledged by the Union that ‘[t]he Court did not need to address the implications flowing from the existence of a redundancy situation in circumstances where the Court was dealing with criticisms by the [Bank] that no such redundancy situation had been pleaded’.

20 As to the Union’s submission the subject of subpar [18](i) above, what clause 18.4.4 stipulates precisely is that upon a position becoming redundant, the Bank is required to adopt one of three courses of action in respect of the employee so affected, only one of which is to retrench that employee; the other two course are redeployment to comparable employment, or to non-comparable employment for up to eight months; in the latter case, clauses 18.4.9 to 18.4.11 provide for what would occur at the conclusion of that limited period of time.

21 Further as to the Union’s submission the subject of subpar [18](ii) above, the operation of clause 18.2.7, which defines the meaning of retrenchment as ‘the termination of employment of an employee as the result of redundancy’, the same must be read in the light of the definition of redundancy set out in the preceding clause 18.2.6 (reproduced in [7] above), and of the so-called ‘key objectives’ of clause 18 set out in clause 18.1.2, namely ‘… to enhance, encourage and maximise the redeployment of employees whose positions have become redundant and to ensure that compulsory retrenchment should only occur as a last resort’.

22 As to the Union’s submission the subject of subpar [18](iii) above, the same merits repetition of the full text of clause 18.5, in order to demonstrate the understatement, if not misstatement, by the Union of the operation of clause 18.5.2 of the EBA; that clause was extracted in full in my reasons for judgment of 30 July 2004, and is again set out below for emphasis:

‘18.5 Selection for Retrenchment

18.5.1 Where an employee cannot be redeployed, he or she will be retrenched.

18.5.2 In a redundancy situation affecting a number of employees 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 employees are to be retrenched.

18.5.3 Nothing in this clause will prevent the Bank from inviting an employee to apply for retrenchment or an employee applying to be retrenched.

18.5.4 The Bank’s right to select employees for retrenchment will be final.’

The emphasis above on may is mine. The Union’s submission that clause 18.5.2 ‘… provides for the Bank to (my emphasis) call for volunteers for retrenchment…’ is thus based on a misstatement of the operation of clause 18.5.2.

23 As to the Union’s submissions the subject of subpars [18](iv) and (v) above, which conveniently fall to be addressed together, it is I think incorrect in the first place to describe the operation of clause 18.5.2 as involving or constituting an ‘exception’; as I have already emphasised, that clause stipulates for a discretionary authority of the Bank, not an obligation, in the context of ‘a redundancy situation affecting a number of employees engaged in the same work at or about the same classification level and in the same work area’, to call for applicants for retrenchment and to determine which employees are to be retrenched. Moreover there is no reason or requirement, contrary to the Union’s apparent contention, for the exclusion from the width or generality of operation of clause 18.5.2 of the EBA of any so-called ‘wider right to select from any of those employees doing the same work within the same classification level in the same work area’, in the event of the fulfilment in any given case or context of the pre-condition of ‘… a redundancy situation affecting a number of employees engaged in the same work at or about the same classification level and in the same work area…’.

24 Finally, in regard to the Union’s submissions the subject of subpar [18](vi), the same are nevertheless predicated upon an assumption as to the operation of clause 18.5 and subclause 18.5.2 thereof in particular which is not to my mind supported or borne out by the language and purport thereof, involving as the subclause does the Bank’s entitlement ultimately to select employees for retrenchment where those employees, being ‘engaged in the same work at or about the same classification level and in the same work area’, are affected by a redundancy situation.

25 For completeness I should record that the Union made the following concluding acknowledgments, in the course of their submissions in chief in support of its application to file the revised S/C:

(i) after citing that aspect of [31] of my reasons for judgment of 30 July 2004 which stated ‘clause 18 does not operate to prohibit the Bank from retrenching an employee whose position of employment has not been abolished’, nevertheless ‘[i]f the Court’s view is that what was said in [31] embraced the circumstance where there is a redundancy situation (even though such had not been pleaded) or if the Court is of the view that, although not considered at the time, it makes no difference to the Court’s conclusion whether or not there was a redundancy situation, then it is accepted that the application to further amend the Amended Statement of Claim would be rejected’; and

(ii) in those circumstances, ‘noting that the [Union] does not now press its alternative claim set out in [22(b)] of the [prior S/C], it is accepted that the Court’s decision would effectively dispose of the [Union’s] application’, and therefore ‘[o]n that basis the Court would refuse to make the order sought by the [Union’s] Notice of Motion and dismiss the claim’.

The Bank’s responses to the Union’s submissions in chief and the Union’s submissions in reply

26 The Bank advanced the prefatory contention, in response to the Union’s submissions in chief, that although the revised S/C constituted a purported repleading of the prior S/C, yet particularly in the light of pars 13, 17, 18, 23, 25-27 and 30 of the revised S/C, the same went ‘no further’ than the prior S/C. It was emphasised by the Bank that I had already found, in the course of my reasons for judgment of 30 July 2004, that the prior S/C disclosed no cause of action, in particular in so far as it alleged breaches of clause 18 of the EBA by reason of the Bank’s treatment of employees as redundant who were not in a redundancy situation. My conclusion commencing at [30] of those earlier reasons for judgment was in the following terms:

‘In my opinion, the S/C as presently framed by the Union, does not plead, or plead adequately, contravention or breach of such material obligations or conditions on the Bank’s part of the material elements of clause 18 of the EBA, such as are necessary to sustain a viable cause of action. What is required is an identification with precision of the elements of clause 18 sought to be relied upon by the Union, and of material facts and circumstances asserted to satisfy those requisite elements.’

The revised S/C has sought to address that observation. In any event, I made the following further observation:

‘In reaching that conclusion, I have accepted as soundly conceived the Bank’s interpretation of clause 18 of the EBA to the extent material to the Union’s present complaint. In my opinion, clause 18 does not operate to prohibit the Bank from retrenching an employee whose position of employment has not been abolished.’

I referred in that regard to the operation of clause 18, and the fact that clause 18.4.2 speaks of current positions which have been declared redundant,rather than provides ‘an expression or description importing the notion of an abolished or discontinued position of employment’.

27 The Bank contended therefore that the fundamental issue between the parties arising on the Union’s present application was whether its reformulation of the prior S/C was viable, having regard to my earlier reasons for judgment, the Bank submitting that the terms of those reasons left no room to suggest that a different outcome would have resulted if the Union had merely altered its pleadings to better reflect the terms of the EBA, and clause 18 thereof headed Redundancy Redeployment and Retrenchment in particular. I was referred in particular to my reference to the expression ‘whose position of employment has not been abolished’ appearing in the context generally of [31] of my reasons for decision of 30 July 2004. The Bank asserted that its only obligation falling within the scope of clause 18 of the EBA was an obligation to make certain payments to those employees whose position was redundant within the terms of that clause, and that if, as the Union claimed, the three employees specifically the subject of the proceedings were not redundant, the Bank did not breach any obligation by treating them as redundant, and by retrenching them, and by making those payments to them. That was said by the Bank to be because it could not constitute a breach of the EBA for the Bank to have purported to act under that clause. Rather, so the Bank thereby seemingly implied, any redress in favour of those employees could only be for unfair dismissal, in relation to which any award of damages would need to allow credit in favour of the Bank in respect of any such payments of the Union’s case sought to be made out by the revised S/C.

28 In its submissions in reply, the Union rejoined to the effect that clause 18 imposed many obligations upon the Bank, quite apart from making ‘certain payments’, and further that it was wrong to suggest that the only obligation of the Bank falling within clause 18 was to make certain payments to those employees whose position in terms of clause 18 was redundant. I was referred by the Union to the obligations of the Bank for instance to consult with and provide information to the Union (clause 18.3), to make reasonable efforts to deploy and ‘where appropriate to train’ (clause 18.4), and in any event to provide adequate notice of retrenchment (clause 18.7). The Union contended moreover that the Bank’s submissions upon the meaning and operation of clause 18, if correct, ‘would have an effect entirely contrary to the purpose of clause 18 – namely that whenever the [Bank] determines to reduce staff it can avoid the obligations of the [EBA], including the obligation to make redundancy payments, by selecting for redundancy only those employees whose positions are not redundant and filling their vacant positions with employees who occupied positions that were redundant’. The issue raised by that response of the Union would involve an apparent postulation of a contractual inhibition placed upon the Bank as to dismissal of non-redundant employees. That rejoinder of the Union would not appear to come to issue, or in any event to be here material, at least for the reasons of the Bank already recorded.

29 It was next submitted by the Bank that the Union, by its revised S/C, was now seeking to plead that each of Ms Cashion, Mr Tancred and Ms Burns had been ‘… affected by a redundancy situation’, but that the Union did not assert thereby that their respective positions of employment were redundant, in the sense or meaning that the Union would attribute to redundancy, namely such positions were to be abolished. According to the Bank’s submissions, what the Union was seeking to argue was that each of the three identified employees was not redundant, the Bank referring thereby to the following provisions of the revised S/C, namely subpars 30(d)(viii) in relation to Ms Cashion, 30(e)(vii) in relation to Mr Tancred, and 30(f)(vi) in relation to Ms Burns. Thus so the Bank’s submissions continued, the Union was seeking in reality the re-determination of the same question that arose for decision by the Court on the Bank’s previous strike-out application. Or as put another way by the Bank, the Union was ‘trying to canvas the Court’s decision’, by virtue of ‘an amendment which does not alter the substance of its claim, which claim has already been rejected’.

30 The Union responded to those last submissions the effect that the issue presently raised did not (the Union’s emphasis) involve the same question as that now arising for determination. The question said by the Union to have arisen for determination in my previous reasons for judgment was that raised by the Bank’s notice of motion, namely, is it a breach of clause 18 ‘to treat the employees in question as if they were in a redundancy situation if in fact they were not?’, whereas the question said to be raised by the revised S/C was ‘is it a breach of clause 18 to dismiss employees for reason of redundancy in circumstances where they were affected by a redundancy situation, but their particular positions were not redundant?’ The Union thus further contended that ‘[w]hile the Court upheld the [Bank’s] Motion, it is not clear that the Court also finally determined that second question, which of course the Court did not need to consider in circumstances where the pleading did not actively plead the existence of such a redundancy situation’.

31 Put another way by the Bank in the course of argument, one of the principal amendments sought by the Union to its prior S/C was a claim to the effect that the relevant employees were ‘affected by a redundancy situation’ in alleged breach of clause 18 of the EBA, even though their particular positions had not been declared redundant. However as may be recalled from my earlier decision of 30 July 2004 (at [31]), clause 18 of the EBA was submitted by the Bank not to so operate as to prohibit the Bank from retrenching an employee whose position of employment had not been abolished. In short, so the Bank submitted, there was no prohibition on retrenchment contained in clause 18, nor was there any warrant to read therein any such prohibition, and any rights of redress of employees in those circumstances would therefore fall to be determined elsewhere (for instance at least at common law for any unfair dismissal which may have occurred). I observe in that regard that at least clauses 8.4.4(ii) and (iii), 18.4.10, 18.4.11, 18.5.1, 18.5.2, 18.5.3, 18.5.4, 18.7.1, 18.7.4, 18.8.1 and 18.8.2 address the subject of retrenchment, as do clauses 18.9 to 18.12 (inclusively).

32 Largely upon the footing of what I have above summarised, the Bank submitted that the Union was by its revised S/C attempting in reality to use two different concepts of redundancy in clause 18 of the EBA, in circumstances where clause 18.2.6 has defined a single concept of redundancy (ie ‘position redundancy’) in an exclusive as well as comprehensive manner. It is appropriate to set out below the precise language of the Bank’s description of the Union’s contentions in that regard, and its criticisms thereof:

‘The first is a broad definition of the provision to be used when determining whether the clause is to apply to a particular situation. Once this broad test has been met, on the [Union’s] approach a much narrower approach is utilised to determine whether the particular individual is redundant. However, in the [Bank’s] submission, the words used within the clause are the same, are defined and therefore the interpretation of them should be the same. There is no basis for arbitrarily widening and narrowing the meaning of “redundancy” or “redundancy situation” to artificially create a situation which is clearly not within the meaning of the clause. The term “affected by a redundancy situation” (emphasis added) is not used in clause 18 or in any other part of the EBA. It is a meaningless concept foreign to that instrument and cannot be used to change the proper and ordinary meaning of it… the [Union] is still unable to point to any part of clause 18 preventing the Bank terminating an employee whose position has not been abolished.’

33 The Union rejected the contention that it had used two different concepts of ‘redundancy’ in the context of its purported resort to clause 18 of the EBA (in the context of the course of its submissions). The Union accepted that the word ‘redundancy’ has only one meaning, namely that given to it by clause 18.2.6, and contended that a ‘redundancy’ arose upon a position being ‘abolished’ (see Clause 18.3.2, which refers to the Bank’s obligation to notify the Union with ‘details of the positions to be abolished including position numbers where available…’). It was entirely consistent with that definition, so the Union further contended, that a ‘redundancy situation’ would arise in circumstances where the Bank decided to abolish one or more positions. That a ‘redundancy situation’ could affect more than one employee at the same time, and could affect more than just the employees in the positions that may have been made redundant, was said by the Union to be ‘clear’ from clause 18.5.2, the text whereof is repeated below for ease of reference:

‘In a redundancy situation affecting a number of employees 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 employees are to be retrenched.’

34 Moreover that clause was said by the Union to be predicated on the assumption that the number of employees who would be affected by a redundancy situation would be greater than the number of positions that would have been made redundant, since all of the Bank’s employees ‘affected’ in that work area and at that classification level would be able to volunteer for retrenchment, and the Bank would then select from those volunteers the number it required to be retrenched. Thus it was contended by the Union that it was the Bank’s approach to the operation of the expression ‘redundancy’ which was unreal, and that in circumstances where, for instance, the Bank might determine to abolish one of two teller positions at a Branch, only the teller holding the position that had been abolished would be in a ‘redundancy situation’. The effect of that submission was said by the Union to be that if the Bank was to implement the reduction required by terminating the employment of the other teller (ie the teller that happened to be in the position that had not been abolished), it could do so without having to abide by the obligations of clause 18 of the EBA.

35 Moreover the Union contended that the expression ‘affected by a redundancy situation’ was indeed used in clause 18. I was again referred to clause 18.5.2, which referred to ‘a redundancy situation affecting a number of employees, and to clause 18.4, which dealt with obligations inter alia to redeploy, commencing with clause 18.4.1, which was said to use a phraseology with similar effect, namely ‘[w]here redundancy situations occur, the Bank will make reasonable efforts to redeploy the employees concerned’. The whole of clause 18 was said to clearly intend to provide benefits and impose obligations in respect of employees affected by or concerned by a redundancy situation.

36 It seems to me however that the use relevantly of the plural of ‘redundancy’ in the particular contexts cited in the Union’s submissions is not supported by the context of the EBA, once read consistently and as a whole. The definition of ‘redundancy’ is contained in clause 18.2.6, which adopts the singular notion, namely of course that of ‘position redundancy’, significantly, the singular is reflected in particular in clauses 18.2.7, 18.4.3 and 18.4.4 to 18.4.11. True it is that in following provisions of the EBA, plurality appears, but not so as to vary or dislodge the preceding operation of the singular number. It is I think unintended by the contexts involving plurality to which I have referred to afford the significance asserted by the Union.

37 By way of illustration of the point of interpretation here in issue, the Bank argued that if par 23 of the revised S/C (extracted in [9] above) was to be allowed to remain, then its practical application would mean that every individual employed anywhere in Australia by the Bank, ‘from the Chief Executive down’, would be ‘affected by a redundancy situation’ each time the Bank made a decision to abolish a position anywhere within its retail operations in the context of a quota review. That may be somewhat of an extreme example, but less extreme examples may obviously come to mind. The approach of the Union was thus described by the Bank as unsustainable, being an approach which would ‘also have the absurd result of the abolition of a position held by an employee who is not covered by the agreement creating a redundancy situation’.

38 In summary therefore the Bank concluded its written submissions as follows:

(i) the words used in clause 18 of the EBA should be given their ordinary meaning, and no assistance was to be gained from extrinsic material; there was nothing in the words of clause 18 that prohibited the Bank from retrenching an employee whose position had not been abolished;

(ii) the extrinsic materials upon which the Union sought to rely did not establish that the parties had a common intention to include in their reference to the EBA to anything other than their presumed intention;

(iii) none of the extrinsic material sought to be relied upon by the Union established that the terms used in the EBA meant anything other than that which is apparent from a proper reading thereof, or served to make good the Union’s submission that ‘the parties had a common understanding, until around 2001 and 2002, that employees in a redundancy position would only be made redundant in circumstances where his/her position was redundant and not otherwise’; and

(iv) to the extent that employees, who have had their employment terminated with the Bank, might believe that they have been treated unfairly, any such persons would have other avenues of recourse open to them, in particular common law claims for unfair or wrongful dismissal, which some former employees had already undertaken.

39 I should to add that in purported clarification of its contentions above addressed, the Union accepted that ‘… it is the case that following the successful application to strike out the Claim on the basis that it failed to plead that the employees were in a redundancy situation, the Union had now pleaded (in the revised S/C) that the employees were in a redundancy situation, but were in positions that were not themselves redundant’. The Bank contended, but the Union denied, that it was essentially or substantially the same question again arising at the instance of the Union for determination. The Union however asserted that it was only the following question which arose for determination in the previous strike-out application, namely:

‘is it a breach of clause 18 to treat the employees in question as if they were in a redundancy situation if in fact they were not?’

and that the question now raised by the revised S/C was framed as follows:

‘is it a breach of clause 18 to dismiss employees for reason of redundancy in circumstances where they were affected by a redundancy situation but their particular positions were not redundant?’

The Union contended that it was not clear whether I had also finally determined, in the course of my reasons for judgment of 30 July 2004, the latter question now said to be raised for determination, in relation to which the Union acknowledged ‘the Court did not need to consider in circumstances where the pleading did not actively plead the existence of such a redundancy situation’.

40 Nevertheless in the context of the revised S/C, the Union seeks thereby to pursue par 13 thereof in its presently updated form (see again [4] above) and the provisions of the revised S/C consequential thereon, including in particular pars 22 to 27 and 30 thereof (which have also been reproduced earlier in these reasons (see again [9]-[10] hereof)).

Conclusions

41 I have taken the course of recording in some detail the submissions of the parties in order to demonstrate the extent to which the same have supplemented those provided to the Court at the first hearing, and which were addressed by my reasons for judgment of 30 July 2004. I remain unpersuaded that I should arrive at any different conclusion by reason of the framework and contents of the revised S/C.

42 A convenient threshold for my present conclusions is that the critical clause 18 of the EBA, headed Redundancy Redeployment and Retrenchment, applies only to the circumstances set out in clause 18.1.1, that is, ‘… where the Bank is considering or implementing change that impacts upon working arrangements and [being change which] could give rise to potential redundancy and/or redeployment situations’. Clause 18.4.1 reflects that context, and in particular the notion of redundancy situations, and stipulates that ‘[w]here redundancy situations occur, the Bank will make reasonable efforts to redeploy the employees concerned’. Clause 18.4.4 stipulates the implications of crystallisation of those circumstances, to the effect that ‘[f]rom the date the position becomes redundant the Bank will: (i) redeploy the employee to comparable employment; or (ii) redeploy the employee to non comparable employment for up to eight months; or (iii) retrench the employee’, and clause 18.5.2 further stipulates that ‘[i]n a redundancy situation affecting a number of employees 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 employees are to be retrenched’.

43 I have already fully reproduced the full text of those clauses in my narrative of the pleaded circumstances and of the parties’ submissions, but it is convenient to refer once more to the text thereof in order to focus my conclusions thereon, and also the EBA notion of redundancy, which is principally defined by clause 18.2.6 to mean ‘a position redundancy where work… is no longer required to be performed; or is to be performed at a new location which requires a change in residence of the employee concerned…’. Given the length and complexity of clause 18 of the EBA, it assists the drawing of conclusions upon the subject strike-out application to keep those critical EBA notions at the forefront of consideration. It is moreover of threshold assistance to bear in mind that the Bank successfully contended, in support of its earlier application to strike-out the prior S/C, that the same failed to plead that the employees in question were placed in a redundancy situation, the crystallisation whereof provides the trigger for the operation of clause 18.4.1.

44 As has been seen, the revised S/C pleads that each of Ms Burns, Ms Cashion and Mr Tancred was subjected to breach by the Bank of clause 18 of the EBA, by reason of the termination of her or his employment on the purported ground of redundancy in circumstances where it was asserted that the Bank had not determined to make their respective positions redundant, albeit that each of them ‘was affected by a redundancy situation’ (though none of them of course volunteered to be retrenched), and further where the Bank still required the work theretofore done by each of them respectively to be performed, in the sense of performed by other persons employed by the Bank.

45 Clause 18.4 (headed Redeployment)follows of course clause 18.2.6, which describes the meanings of Redundancy and Retrenchment, and also clause 18.3, which is headed Consultative Processes. It is partly in those contexts that the EBA then addresses by clause 18.5 the theme of Selection For Retrenchment, and in particular clause 18.5.2, which commences ‘In a redundancy situation…’. In the recent decision of the High Court in Amcor Limited v Construction, Forestry, Mining and Energy Union & Ors [2005] HCA 10 (published 10 March 2005), the issue arose as to whether employment positions in a certain business had become redundant and in the context of the retrenchment of certain employees. All members of the Court were unanimously of the view that the appeals in each case should be allowed. It was observed in the joint judgment of Gleeson CJ and McHugh J at [13] that regard should be paid to ‘the industrial purpose of the agreement’, and further at [14] that ‘[r]edundancy of position is not a legal or industrial term of art, although there are many cases which examine the concept of redundancy, usually for the purpose of distinguishing it from other causes of retrenchment’.

46 In my opinion, the construction of the EBA and in particular of the foregoing provisions thereof, for which the Bank’s submissions contend, should be accepted for purposes material to the interpretation issues arising. The opening expression of clause 18.5.2, that is, ‘[i]n a redundancy situation affecting a number of employees engaged in the same work at or about the same classification level and in the same work area’ in particular, is not to be read down in relation to its subsequent scope of operation, nor also is the ensuing clause 18.5.2 expression ‘the Bank may call for applicants for retrenchment and determine which employees are to be retrenched’. Consistent with that view are the opening provisions of clause 18.5 (headed Selection For Retrenchment), and in particular that part of clause 18.5.1 reading ‘[w]here an employee cannot be redeployed, he or she will be retrenched’, as also are the closing provisions of clause 18.5, namely clause 18.5.4 to the extent reading ‘[t]he Bank’s right to select employees for retrenchment will be final’. The option or right of retrenchment conferred upon the Bank by the preceding clause 18.4.4, being exercisable by the Bank as an alternative to the deployment options specified thereby, is not to be read down by any implication or implications of the kind which the Union would seek to read or introduce into the operation of clause 18 of the EBA.

47 The Union’s endeavours therefore to exclude from the operation of those controversial provisions the existence of any ‘… gateway, notwithstanding the calling for volunteers, to determine that the employees to be retrenched in the circumstances contemplated by 18.5.2 [may] be non-volunteers’ (to adopt one version of the Union’s oral submissions), must be rejected. So must also be rejected the Union’s endeavour to read down the operation of the clause 18.5.2 words ‘… the Bank may call for applicants for retrenchment and determine which employees are to be retrenched’ as implying thereby that employees who do not apply for retrenchment are excluded from the scope of clause 18.5.1, in circumstances ‘[w]here an employee cannot be redeployed, he or she will be retrenched’. Moreover the same observation may rightly be made in relation to those further terms of clause 18.5.4, namely ‘[t]he Bank’s right to select employees for retrenchment will be final’. I would further reject the Union’s contention that ‘… clause 18.5.4 is a provision about the finality of decision [and] not a provision that is designed to give effect to its decisions…’.

48 I therefore uphold the Bank’s application to the Court in effect to disallow the Union’s revised S/C to the extent that leave was required for that purpose, and in any event for dismissal of the proceedings, upon the ground that the revised S/C does not disclose a viable or sustainable cause of action according to law.

Costs

49 I did not make my order as to costs in relation to the Bank’s previous unsuccessful strike-out application the subject of my reasons for judgment of 30 July 2004. However the Bank foreshadowed an application for an order in its favour as to the costs of the present application, if resolved in its favour, upon the footing that the same was said to be brought ‘vexatiously or without reasonable cause’. The Bank contended that the Union’s present application involved merely ‘dressing up’ the same arguments as were placed before me and as recorded in my prior reasons for judgment, the present applications being described by the Bank as an application for leave which raised no new factual or legal issues, and which had no substantial prospect of success.

50 The present application did raise contentions and arguments which were not presented in the context of the previous application, being contentions and arguments advanced largely by reference to the revised S/C. Had the present contentions and arguments been raised on the previous occasion, it may rightly be said the Bank would not have been put to the expense of its present strike-out application. However it was only arguably in that sense that it could be said to have been made ‘vexatiously or without reasonable cause’. It is I think apparent that the present strike-out application constituted a proceeding within s 347 of the Workplace Relations Act 1996 (Cth) see Shackley v Australian Croatian Club Ltd (1996) 141 ALR 736 at 745 (Wilcox CJ with whom Von Doussa J agreed. Moreover I would observe that s 347(1) is not to be read narrowly; see Commonwealth v Construction Forestry Mining and Energy Union (2003) 129 FCR 271 at 274.

51 I would however withhold from making an order that the Union pay the Bank’s costs of and incidental to the present proceedings for the time being. That is partly because I had earlier concluded, in the exercise of my discretion, that the Union should be afforded the opportunity of reframing its statement of claim, and the document presented has occasioned significant and bona fide debate on the part of both parties. Moreover the proceedings have now been resolved at first instance essentially by way of resolution of the construction of the EBA. I have not been referred to any authority whereby proceedings have been dismissed in consequence in effect of a successful demurrer to a pleading which was fairly arguable. In those circumstances I would invite further submissions upon the issue of costs within 14 days.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated: 30 March 2005

Counsel for the Applicant:	RC Kenzie QC with I Taylor

Solicitor for the Applicant:	Turner Freeman

Counsel for the Respondent:	RJ Ellicott QC and PR McGuire

Solicitor for the Respondent:	Freehills

Date of Hearings:	25 November 2004

Date of Judgment:	30 March 2005

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