FEDERAL COURT OF AUSTRALIA

Coochey v Commonwealth of Australia [2005] FCA 1165

INDUSTRIAL LAW - certified agreements – provisions as to redeployment and retrenchment – breaches established.

INDUSTRIAL LAW – whether Commonwealth ‘body corporate’ for purpose of penalty provisions to Workplace Relations Act 1996.

Acts Interpretation Act 1901 (Cth)

Judiciary Act 1903  (Cth)

Trade Practices Act 1974 (Cth)

Workplace Relations Act 1996 (Cth)

CFMEU v Coal & Allied Operations Pty Ltd (No. 2) [1999] FCA 1714; (2000) 47 AILR 4-215

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384

Community and Public Sector Union v Telstra Corp Ltd [2001] FCA 1364; (2001) 108 IR 228

Newcastle City Council v GIO General Ltd (1997) 191 CLR 85

Workcover NSW v Police Services of NSW (2000) 50 NSWLR 333

JOHN COOCHEY v COMMONWEALTH OF AUSTRALIA

A 30 OF 2002

MADGWICK J

24 AUGUST 2005

SYDNEY (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1.                  A penalty of $8,000 be imposed on the respondent in respect of the first breach.

2.                  A penalty of $100 be imposed on the respondent in respect of the second breach.

3.                  In each case the penalties are to be paid to the applicant within twenty-one days.

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

REASONS FOR JUDGMENT

Madgwick J:

1                     This is an application seeking the imposition of penalties for alleged breaches of a certified agreement registered under s 170LJ of the Workplace Relations Act 1996 (Cth) (‘the Act’).

2                     The applicant was a career public servant.  He was born on 9 May 1950.  He commenced service in the Australian Public Service (‘the APS’) on 8 November 1976.  By 1986 he had gained promotion to Senior Officer Grade B (‘SOGB’) level, later known as Executive Level 2 (‘EL2’), in the Department of Defence (‘the Department’).

3                     Due to governmental rationalisation and internal re-structuring of the Department, Mr Coochey was first regarded as ‘surplus’ (in later terminology, ‘potentially excess’) from about 1992.  To maintain his employment, he took a number of lengthy placements elsewhere in Commonwealth public employment, on secondment from the Department.  He returned to the Department in late 1998.  His employment with the Department ceased on 9 September 1999 in circumstances explained below.

4                     By the time the applicant returned to the Department the subject certified agreement (‘the Agreement’) was in force.  It commenced to operate and was certified by the Australian Industrial Relations Commission (‘the AIRC’) on 6 May 1998 and was in force at all material times.

5                     To understand the alleged breaches of the Agreement, it is necessary to survey its relevant provisions.  These are set out in the Appendix to these reasons.  The main provisions in question are clauses 18, 21.5.1, 23.5 and 23.5.4.  For ease of understanding they are also reproduced here: 

‘18.      PRINCIPLES

18.1     The Department will provide employees who are excess or potentially excess because of structural, organisational or technological change with assistance to maximise redeployment opportunities and, as much as it is practicable, to avoid involuntary retrenchments.

18.2     The Department will:

18.2.1  ensure that excess and potentially excess employees are fully informed of all relevant redeployment and retrenchment arrangements including all assistance available to them.

18.2.2  aim to match, as closely as possible, the abilities and skills of excess and potentially excess employees to the requirements of vacant positions, and to take into account the wishes and interests of those staff to the maximum extent possible. This extends not just to choice of duties but also to preference of work locations. It is the Department’s objective to settle each case on a mutually acceptable basis.

18.2.3  provide the necessary personnel and financial resources required to meet its obligations under this Agreement regardless of where staff are located.

18.2.4  provide excess and potentially excess staff with reasonable training/retraining or on-the-job training (OJT) with the purpose of helping staff to cope with changes to their employment and/or to enhance their redeployment prospects.

18.2.5  place priority on redeploying excess and potentially excess employees in Defence or within the wider APS. However, the Department recognises that in certain circumstances redeployment opportunities within the APS may be limited and assistance for excess and potentially excess employees should therefore be directed towards equipping them for employment in the private sector.

18.2.6  make every effort to expedite an employee’s voluntary retrenchment in situations where this course of action is acceptable to both the Department and the employee involved.

18.3     There is an obligation on excess and potentially excess staff to act in a responsible and reasonable manner and to consider seriously any offers of redeployment, training/retraining and OJT made to them by the Department. In addition, it is expected that excess and potentially excess employees will pro-actively pursue redeployment opportunities.

…

21.5.1  the Department will consider potentially excess employees in isolation from, and not in competition with, other applicants for advertised vacancies at or below the employee’s nominal level for which the employee applies. Excess employees will have preference over potentially excess employees:

…

23.5          Retention Periods: An excess employee is entitled to a retention period of 7 months.

…

23.5.4 During the retention period the Department will continue, consistent with the interests of efficient administration, to assist an excess employee to transfer to a suitable vacancy of equal or lower level within the Department or the wider APS.’

6                     At the outset of the hearing, counsel for the applicant provided the following elucidation of the claims:

‘1.        At a time when Mr Coochey was potentially excess or excess, the Respondent failed to consider him in isolation from and not in competition with other applicants for Position No 12935, a position at or below his level.

This was in breach of the Certified Agreement, including clauses 18.1 & 21.5.1.

2.         At a time when Mr Coochey was potentially excess or excess, the Respondent failed to offer him Position No 12935, a position at or below his level, despite having found that he satisfied all selection criteria for the position and was suitable for it.

This was in breach of the Certified Agreement, including clause 21.5.1, 23.5.4.

3.         At a time when Mr Coochey was potentially excess or excess, the Respondent failed to offer him Position No 12935, a position at or below his level, despite having found that he satisfied all selection criteria for the position, was suitable for it and without considering whether he could have become fully efficient in the position within 3 to 6 months.

This was in breach of the Certified Agreement, including clauses 18.1, 18.2.4, 21.5.1, 23.5.4 and associated policies in “[Managing Displaced Employees in Defence]”.

4.         At a time when Mr Coochey was potentially excess or excess, the Respondent failed to inform him that it had found him suitable for Position No 12935, a position at or below his level.

This was in breach of the Certified Agreement, including clauses 18.1, 18.2.1, 21.5.1, 23.5.4.

5.         At a time when Mr Coochey was potentially excess or excess, the Respondent failed to assist him transfer to Position No 12935, a position at or below his level, for which he had been found suitable.

This was in breach of the Certified Agreement, including clauses 18.1, 18.2.1, 21.5.1, 23.5.4.

6.         At a time when Mr Coochey was potentially excess or excess, the Respondent failed promptly to refer him to APSLMAP. [ie the Australian Public Service Labour Market Adjustment Program]

This was in breach of the Certified Agreement, including clauses 18.1 & 23.5.4.

7.         At a time when Mr Coochey was potentially excess or excess, the Respondent failed promptly to consider and match his abilities and skills to the requirements of vacant positions within the Department, including positions numbered 11947, 389489, 1600, 382534, 12935, 385317 and 384767, being positions at or below his level.

This was in breach of the Certified Agreement, including clauses 18.1, 18.2.2 & 23.5.4.’

7                     As a result of developments in the course of the hearing, the only claims which require consideration in some detail are those concerning Position No. 12935 and that concerning APSLMAP.

Position No. 12935

8                     Mr Coochey had post-graduate qualifications in Economics and supra-graduate level qualifications in Spanish.  He could write well and was of an iconoclastic bent of mind.  He had experience of a range of jobs in several government agencies as an analytical economist, among other capacities.  At times relevant to his claims, his substantive position, at the SOGB or EL2 level, was in the Defence Department’s Defence Acquisition Organisation.

9                     Under the arrangements which existed before the Agreement came into effect, the Department, in a minute from Mr Richards, the ‘Manager – Corporate Services’, notified Mr Coochey of his ‘potentially excess status’ on 15 October 1996.

10                  On 8 September 1998 the Department advised Mr Coochey that ‘all Defence Programs are required to reduce their number of senior officers (COL(E)/SOG’B’ level and above) by an order of twenty per cent’, and that he would be ‘likely to be difficult to place at [this] level should [he] return to the Department’.  Mr Coochey returned to the Department in about November 1998.

11                  On 8 June 1999 Ms Hughes, the then Director of Civilian Redeployment and Retirement, formally advised Mr Coochey that he was an excess employee within the meaning of cl 19 of the Agreement, that he was entitled to be retained pursuant to cl 23.5 for seven months to enable him to pursue redeployment opportunities within the APS, and that within two months an offer of voluntary retrenchment would be made to him.  Further, he was told:

‘Your case is being monitored within the Department by Ms Margaret Sloan, who should also be provided with a copy of any applications for positions within the APS’.  (Emphasis added.)

12                  A contact telephone number was provided for Ms Sloan.

13                  On 10 June 1999 the Department advertised Position No. 12935, among others, in the Commonwealth of Australia Gazette (‘the Gazette’).  Applications were to close on 24 June 1999.  This was a position in Canberra at the EL2 (or SOGB) level.  Mr Coochey considered he was well qualified for this position.  He also considered that he had a reasonable chance of obtaining it.  He had come to think (whether rightly or wrongly is irrelevant) that, in general, qualification for a position did not necessarily imply a good chance of obtaining it.  He applied for the position.

14                  The formal duty statement for the position indicated that its main functions were to –

‘1.        Develop concepts and strategies for the mobilisation of national resources to support and sustain the Defence effort, within a national security context.

2.         Develop, or assist in the development of, strategic-level national and international mechanisms that will facilitate and control the mobilisation of national resources to support and sustain the Defence effort.

3.         Develop an understanding of the strategic context in which the National Support Agenda should develop and provide advice on its impacts and influence.’

and included:

‘6.        Under broad direction, plan, direct and control the work of a team.’

15                  The then Director-General National Support Mobilisation Planning, Brigadier Tyers (since retired), whose agency the appointee was to support and advise, chaired the selection panel.  He chose Ms Nagle, an Assistant Secretary in the Defence Science and Technology Organisation (‘DSTO’) responsible for liaising with Brigadier Tyers’ agency, to sit on the panel with him.  The third member was, according to Brigadier Tyers, merely a ‘minutes scribe’ who took notes of the interviews.

16                  On 23 August 1999 the panel interviewed several candidates for the position, including Mr Coochey.  Mr Coochey did not tell the selection panel that he was an excess officer. 

17                  I interpolate that the respondent’s claim is that Mr Coochey did not do this, nor did he tell the Redeployment and Retirement Section (‘R & R’) in which Ms Sloan worked, about his application for the position.  The respondent says this is because the applicant allegedly perceived that his best chance of obtaining the position was to apply, not as an excess officer, but to compete in a comparative merits contest with any other applicant.  Mr Coochey’s version of events, however, is that he wished to use the considerable advantages of applying as an excess officer, sent R & R a copy of his application and applied directly to the Recruitment section (Directorate of Civilian Recruitment & Organisational Management Branch) so as to be doubly sure that his application would be received in time. 

18                  During a break in the panel’s interview schedule, after Mr Coochey’s interview, a colleague told Brigadier Tyers that Mr Coochey may have been potentially excess or excess.  On inquiry the Brigadier was told by ‘someone in Defence Personnel’ that Coochey was neither potentially excess nor excess.  ‘Based on that information’, Brigadier Tyers says that the interview schedule continued.  No inquiry was made of Mr Coochey as to his status.

19                  The panel’s report and recommendations were apparently produced in October 1999.  This was after Mr Coochey was given notice that he would be retired from the ASP with effect from ‘the expiration of 9 September 1999’ and he had been so retired.

20                  The panel rated the candidates against fixed ‘selection criteria’ on a scale from zero to five, signifying:  5 – Excellent;  4 – Very Good;  3 – Good;  2 – Satisfactory;  1 – Requires Development, and 0 – Not Satisfactory.  Mr Coochey was rated ‘3’ on five of the ten criteria and ‘2’ on the other five.  The chosen candidate was rated ‘4’ on five criteria, ‘3’ on four criteria and ‘2’ on the remaining criterion, and received an ‘overall’ assessment as ‘Highly Suitable’.  Another candidate was assessed as “Very Suitable’ and received an ‘overall ranking’ of ‘2’.    Two other candidates were each assessed as ‘Unsuitable’ and ranked ‘NR’ (not recommended).

21                  Mr Coochey was assessed as ‘Marginally Suitable’ and ranked ‘NR’.

22                  The summary overall assessment of him by the panel was:

‘Mr Coochey has good support from his referees and, while the Committee was satisfied that he possessed some of the necessary skills and was assessed as meeting the basic requirements of all of the selection criteria, it was not confident that he would be able to perform the duties of the advertised position at the standard required.

Overall Rating:          Marginally Suitable’

23                  The relevant definitions of the comparative terms – ‘good’, ‘satisfactory’ etc open to be used by the panel were:

24                  There is no doubt that, as Brigadier Tyers put it, the panel ‘interviewed  Mr Coochey for the [p]osition in competition with other candidates’.

25                  Ms Nagle’s evidence in chief was that:

’17.      … If Mr Coochey had been considered in isolation, he would have been considered suitable and therefore obtained the Position if the panel had assessed that he would be able to perform the duties required by the job within 3-6 months with appropriate training.  In the case of an employee considered in isolation, this is the issue that the panel must determine.  When considering this issue, the panel must consider, for example, the interests of the employee and his/her prospective managers.  If the employee takes the position but is not suitable within 6 months the employee will have to go through the displaced employee staff process all over again.  The reference to “appropriate training” means that prospective managers should not be required, for example, to spend all their time training the employee but may be expected to provide a reasonable amount of training.

18.              In the case of a displaced employee, if the panel reads the employee’s application and considers that the employee is suitable, it is open to the panel to simply put the employee into the job.  On the other hand, if the panel reads the application and considered that the employee is likely to be unsuitable, the employee must still be interviewed.

19.              Where an employee is considered in isolation, the panel provides an overall rating of either “suitable” or “unsuitable”.  The overall rating of “marginally suitable” is not used.  The panel still provides, however, an individual assessment summary using the same criteria and also the panel’s list of questions.

20.       A displaced employee considered in isolation will obtain the position if he/she is considered suitable.  The panel must consider the duties contained in the relevant duty statement and be sure either that the employee is currently suitable or that the employee will be able to satisfy the duties within 3-6 months with appropriate training.

21.       … If Mr Coochey had been considered in isolation for the Position, I have no doubt that he would have been interviewed.  The panel would have made enquiries of Mr Coochey’s peers, asked questions of his referees and overall conducted an investigation relating to the selection criteria and other relevant matters.  Because Mr Coochey’s status as an excess officer was not known to the committee panel, he was not considered in isolation, and it is not possible for me to assess whether he would have obtained the job or not.’

26                  To the extent that there is any conflict between Ms Nagle’s and Mr Tyler’s evidence,  I prefer the former.

27                  It seems to me very likely that, had Mr Coochey been considered in isolation, he would have been regarded as suitable, upon the basis that he would have been able to perform the duties of the position in question within three to six months with appropriate training, of the kind spoken of by Ms Nagle.  He was assessed as ‘good’ in relation to half the criteria and ‘satisfactory’ as to the remaining half.  The latter assessment indicates (see [22] above) that, at least, as to the relevant criteria ‘[h]e … would be able to adequately carry out the duties of the position, given some further training and development to enhance his/her existing satisfactory capacity’.  Mr Coochey impressed me as a highly intelligent man, a good listener and quick on the uptake.  He was also highly motivated to stay in the Department and would have been highly motivated to succeed.  Interviewed alone, I think he would have appeared very promising.  If anything, he was likely to have made a better impression, not viewed in competition within a ‘highly’ suitable applicant.

28                  I accept that Mr Coochey did apply in the way he described and did so for the reasons he gave.  The genesis of the idea advanced on behalf of the respondent that he preferred to take his chances without any possible taint of being an excess officer was a report which had reached Ms Heard’s ears that Mr Coochey had in the past elected so to proceed.  That appears, however, to have been an incorrect rumour.  In any case, by 14 January 1999, only a few months before the events in question as to position 12935, Mr Coochey said, in the course of resisting being declared excess:

‘3.        Since officially being made “potentially excess” I have never been considered in isolation for positions in Defence, which is my right under the workplace agreement.

…

… I intend to make every effort to secure employment.’

29                  The inference is plain that he wished to take advantage of his right to be considered in isolation for positions for which he might apply.  Many officers, including quite senior officers were being displaced.  There was by 1999, whatever may or may not have been the position earlier, unlikely to have been any taint attaching to a person in that position.  To be considered in isolation was a singular advantage.  I am quite satisfied Mr Coochey did not intend to jettison it.

30                  Mr Coochey was, in my assessment, an honest witness.  He was, however, shown to have mis-remembered some things to his own advantage and the Department’s detriment.   In part that stemmed from the influence that interest tends to have on recollection.  In part, also, it stemmed from a degree of bitterness Mr Coochey felt about the efficacy of Departmental procedures and the work of relevant Departmental officers during his last year or so of employment by the Department.  This bitterness was magnified once the oversight of his rights in relation to the subject position became known to him after his employment had terminated.

31                  Nevertheless, Mr Coochey had higher hopes of gaining this position than others for which he had applied.  Therefore, he had some reason to remember events associated with his application for it.  Further, he became aware in early December 1999 that the interviewing panel had not considered him in isolation.  He is likely then to have turned his mind to all the events associated with the application.  There is no reason to think that he invented the account he gave in evidence.  Given that he had a low opinion of the usefulness of the R & R Section, it is likely that he proceeded as he said he did. 

32                  The means of Mr Coochey’s receiving internal mail and communications within the Department were less than robustly reliable.  His perceptions may, on this account as well as other communication difficulties, have overestimated the extent to which R & R did not do everything that they should have done.  The then officers of that section who gave evidence left me with the impression that they had taken their work seriously and appreciated its importance for the excess and potentially excess officers for whom efficiency on the part of the R & R section represented something close to their last hope of retaining employment.  Nevertheless, mistakes and oversights were shown to have occurred and, no doubt, did occur.  In my view, Mr Coochey’s evidence, and the subsequent failure of anyone to inform the selection panel that he was an excess officer, are consistent with an oversight in his case by the relevant officer or officers in R & R and/or with a defect in a secure and efficacious system of communication by R & R with the Recruitment section. 

33                  As cl 21.5 of the Agreement indicates, Mr Coochey had an ‘entitlement’ – a right – to have the Department consider him ‘in isolation from and not in competition with, other applicants’ for Position 12935.  The Department had a corresponding obligation – a duty – to Mr Coochey so to consider him.

34                  It is true that, pursuant to cl 18.3 Mr Coochey was under ‘an obligation … to act in a responsible and reasonable manner’.  While he did not follow the exact procedures laid down in some of the Departmental materials to enable R & R to render the assistance due to people in his position, Mr Coochey had his reasons for this, as I have indicated.  He was, it is readily inferred, a man under some stress.  See also [10] above.  I do not think it is shown that he failed to act in a responsible and reasonable manner.  As to his not having told the interviewing panel himself of his status, I accept the explanation he gave of his reasons for not doing so.  In any case, any sloppiness on his part could not excuse a breach by the Department of its unconditional obligation under cl 21.5.1.  Nor is the obligation under that paragraph subject to any limitation such as exists under cl 18.1 to do ‘as much as it is practicable’ to see that potentially excess employees are considered in a non-competitive environment. 

35                  It is the Department which has the power of decision as to whether an officer is to be declared excess or potentially excess.  It is for the Department to adopt administrative methods that will ensure that the Department fulfils its duty under cl 21.5.1.  That a senior officer such as Brigadier Tyers could have been positively misinformed, on enquiry to a section which seemed to him to be the relevant one, as to Mr Coochey’s status indicates that such methods had not been adopted.  The same is true of a process which allowed the position for which Mr Coochey had applied, as a potentially excess officer, to be filled without a final check to see that the cl 21.5.1 rights of any applicant had not been infringed.

36                  In my view, a failure by the respondent to observe cl 21.5.1 has been shown.  It is not the mere benefit of hindsight that enables the conclusion that the administrative procedures established by the Department were inadequate, but an understanding of the unconditional and unqualified nature of the Department’s obligation.

37                  In any case, as I have indicated, even if Mr Coochey, contrary to my conclusion, had failed to act in a responsible manner, that would not exonerate the Department.  It might go to the extent of relief the Court would grant him.

APSLMAP

38                  The agreement provided in cl 21.4:

‘21.4   Before a potentially excess employee is declared excess and commences a formal retention period the Department will consult with the employee and the relevant union (see 23.4 for details) and provide the employee with an opportunity to:

21.4.1    be referred to the relevant central agency responsible for APS wide redeployment;’

39                  APSLMAP was the central agency contemplated by that paragraph.

40                  Clause 21.4.1 appears to have imposed a particular obligation in the Department as part of its more general obligation under cl 21.1:

‘21.1   The Department will assist potentially excess employees to obtain redeployment at or below their nominal level elsewhere in Defence, or with other APS agencies. In situations where redeployment in the APS is unlikely, assistance will be provided for employees to seek employment in the private sector.’ (Emphasis added.)

41                  More generally, cl 18 headed ‘Principles’ provided:

‘18.1   The Department will provide employees who are excess or potentially excess because of structural, organisational or technological change with assistance to maximise redeployment opportunities and, as much as it is practicable, to avoid involuntary retrenchments.’  (Emphasis added.)

42                  Mr Coochey had been regarded by the relevant Department officers as having been, for the purposes of the definition of ‘potentially excess employee’ in cl 19 of the Agreement, made such an employee in 1996 (or, possibly in 1992 – it is presently unimportant).

43                  On 13 November 1998 Mr Coochey telephoned Ms Heard, then, as ‘the sole Executive Officer’, the head of the R & R section, ‘to talk to [her] about redeployment’.  Soon after this, Ms Heard sent Mr Coochey, among other things, two information documents.  One (‘the Options document’) summarised his options under the Agreement as to redeployment and voluntary redundancy.  The other (‘the Summary document’) discussed practical aspects of redeployment.

44                  On 4 February 1999 Mr Coochey wrote to Ms Heard asking for prompt referral to APSLMAP.  In a letter of the same date to Mr Coochey (the two letters seem to have crossed), Ms Heard referred to Mr Coochey’s having left ‘voice mail messages’ on 2 February that apparently indicated his ‘desire for referral’ to APSLMAP.  Ms Heard said that she was ‘happy to facilitate this on receipt of a formal request from you.  Please write a minute to [Ms Hughes, the Director Redeployment and Retirement Policy]’.  Mr Coochey responded to Ms Heard’s letter on 8 February.  He stated his intention (for which he gave reasons): ‘… I will wait for the APSLMAP representative to contact me to see if they can help’ in relation to APS positions outside Defence.

45                  On 8 February 1999, Mr Coochey, having apparently not heard from APSLMAP, wrote to Ms Hughes requesting a referral to that body, thereby following the advice given by Ms Heard on 4 February.  Mr Coochey said, among other things:

‘… my reading of the Workplace Agreement indicates that such referral should take place automatically without the need for this minute and should have occurred some time ago. … I had been told, verbally, that APSLMAP services were not available to any “potentially excess” officers in Defence….’

46                  Nothing was done to refer Mr Coochey to APSLMAP until 11 May 1999.  On that day Ms Hughes wrote to Mr Coochey to tell him of the Department’s intention to declare him excess on 8 June 1999.  In that letter Ms Hughes said:

‘4.        The Agreement requires that, before being declared excess, you must be referred to …(APSLMAP) – located within the Public Service and Merit Protection Commission – who will examine redeployment for you in other APS agencies.  Your details have been provided to  APSLMAP.  In addition, you will continue to be briefed on redeployment opportunities available within Defence.’

47                  On 8 June Ms Hughes wrote to Mr Coochey in a Minute:

‘5.        As an excess employee, you have been referred to … (APSLMAP) as part of the redeployment arrangements agreed between the Department and the public sector unions in the Agreement.  The local APSLMAP adviser, Mr Rainer Listing, will assist the Department in its attempts to find suitable alternative employment for you in the APS during your retention period.  Mr Listing can be contacted on 6272 3911.

6.         It is important that you actively seek other positions within the APS during your 7 month retention period.  Although you can continue to apply for a promotion, your first priority must be to obtain a position at, or below, your nominal classification level so that you will no longer be an excess employee.

7.         During your retention period, you will be kept in gainful employment to assist you to secure a permanent placement.  This gainful employment will be designed to broaden your skills base and enhance redeployment options.  Such gainful employment may, however, be in another work location or performing duties which are different to your current situation.

8.         Mr Listing will collect information and monitor vacancies across the APS, and outside the APS, and will provide you with relevant information on a regular basis.  However, it is important that you also monitor the Commonwealth of Australia Gazette and other media for suitable vacancies at, or below, your nominal level.

9.                  If you apply for a position at or below your nominal level in another department, you should send a copy of your application to Mr Listing who will then ensure that the other department considers you in isolation from, and not in competition with, other applicants who are not excess employees.’

48                  The submission for the respondent is that, while Mr Coochey was still a ‘potentially excess’ employee and before he was declared excess on 11 May 1999, the Department referred him to APSLMAP.  This, it was said, satisfied cl 21.4 and exhausted the Department’s obligations to Mr Coochey under the Agreement.

49                  It is true that cl 21.4 specifically contemplates the agency known as APSLMAP.  However for the purposes of the Agreement, Mr Coochey had been a potentially excess officer from at least 6 May 1998, the date upon which (in consequence of its certification by the Australian Industrial Commission) it came into force.  In my view, the approach urged for the respondent would make a mockery of the overriding ‘principles’ expressed in cl 18.1 that the Department ‘will provide … assistance to maximise redeployment opportunities and, as much as is practicable, to avoid involuntary retrenchments’.  The same may be said of the Department’s commitment, pursuant to cl 21.1, that it ‘will assist potentially excess employees to obtain redeployment … in Defence, or with other APS agencies’.  The intendment of the Agreement seems plainly enough that, while a potentially excess employee, the employee concerned should have the promised assistance and the benefit of the promised opportunity for referral to APSLMAP.  That intendment would not be accomplished if the Department were free not to give the extra-Defence assistance (no doubt via APSLMAP, in practice) and not to furnish the opportunity promised until the last few moments, as it were, of the officer’s status as ‘potentially excess’ before a transition to ‘excess’.  In my opinion, it is a necessary and obvious implication to give business efficacy to the Agreement to read the obligations in cl 21.4.1 as being required to be fulfilled as soon as is reasonably possible after the employee has been advised that he or she is potentially excess.

50                  Thus understood, the Department failed to comply with the relevant clauses of the Agreement.  By reason of the Department no longer having the relevant documents, no explanation has been forthcoming of why Mr Coochey was not referred to APSLMAP sooner than he was.  The likely explanation is that Ms Heard did not appreciate that Mr Coochey had either not understood her (legally mistaken) requirement that he approach Ms Hughes for a referral or was challenging the necessity for him, as distinct from the Department, to do more to bring the referral about.  Ms Hughes apparently acted without prompting to bring the referral about, albeit belatedly.

51                  On the material before me, there was no deliberate flouting of the Agreement, nor was there likely any actual loss of an opportunity for Mr Coochey to obtain other employment.  I think a nominal penalty will suffice to make the point that the Department should not await an initiatory request from a potentially excess employee for a referral to APSLMAP, but rather, should act to make such a referral (unless the employee does not want it) with all reasonable expedition after the employee has been declared potentially excess.

Available quantum of penalty – ‘body corporate’

52                  Section 178(4) of the Act provides for differential maximum penalties for breaches of awards or certified agreements, depending upon whether the penalty is to be imposed upon ‘a body corporate’ or is to be imposed ‘in other cases’.  The maximum penalty for a body corporate is five times that for a person not a body corporate.  Section 178(1) envisages that such a breach may be committed by ‘an organisation [that is, a registered organisation of employees or employers – see s 4] or person bound by an award … or a certified agreement’.  Organisations are themselves constituted as bodies corporate:  s 27(a) of Schedule 1B – ‘Registration and Accountability of Organisations’.  The (compounded) reference to ‘a body corporate’ ‘bound by an award’ obviously includes organisations as well as many kinds of bodies corporate which may be employers: trading corporations, charitable incorporated bodies, governmental instrumentalities given statutory corporate status, and so on. 

53                  Subsection (5A) of s 178 of the Act is in the following terms:

(5A)     A penalty for a breach of a term of a certified agreement may be sued for and recovered by:

(a)               an inspector; or

(b)               an employee whose employment is subject to the agreement; or

(c)               a person or organisation that is bound by the agreement; or

(d)                an organisation:

(i)         that has at least one member whose employment is subject to the agreement; and

(ii)        that is entitled to represent the industrial interests of the member in relation to work carried on by the member that is subject to the agreement; or

(e)               an officer or employee of an organisation mentioned in paragraph (c) or (d), where the officer or employee is authorised, under the rules of the organisation, to sue on behalf of the organisation.’

54                  Subsection (5) has similar provisions in relation to a breach of a term of an award or order.

55                  As the respondent submitted by way of background on this question:

‘5.        The Applicant was engaged in public sector employment as an officer under the Public Service Act 1922.

6.         Clause 5.1 of the Defence Employees Industrial Agreement 1998-1999 (the “Agreement”) provides that the persons bound by the Agreement include the Minister for Defence.

7.         Section 170M of the Act provides however that, in the case of a Division 2 Agreement, the certified agreement binds, relevantly, the employer.

8.         Section 352 of the Act provides as follows:

            In spite of anything to the contrary in this Act or any other law, the employer of an employee engaged in public sector employment shall, for the purposes of this Act and the Rules of the Commission, act only by an employing authority of the employee acting on behalf of the employer and, in particular:

(a)        Anything done by an employing authority of an employee has effect, for those purposes, as if it had been done by the employer of the employee;  and

(b)       Anything served on, or otherwise given or notified to, an employing authority of an employee has effect, for those purposes, as if it had been served on, or given or notified to, the employer of the employee.

9.         At the time of entry into the Agreement, the employing authorities through whom the Respondent was required to act were the Minister administering the Department in which the Applicant was employed, in this case the Minister of Defence and the Minister of State for Industrial Relations: Item 3 of Schedule 2 of the Workplace Relations Regulations 1996 as in force at June 1998.

10.       The fact that the Minister for Defence was a party to and was bound by the Agreement is accordingly consistent with the scheme of the Act in relation to public sector employment, which provides that the employing authority acts on behalf of the employer. In this case the employer was the Respondent.  The Respondent was therefore bound by the Agreement: s.170M.  If a penalty is to be imposed, it must be imposed on the Respondent.

11.       The issue for determination is accordingly whether the Respondent falls within the category of “a body corporate” or “other cases”.

“Body Corporate” /“Other cases”

12.       The distinction in s.178 between “body corporate” and “other cases” was introduced by Schedule 11 to the Workplace Relations and Other Legislation Amendment Act 1996, No. 60 of 1996.  The explanatory material in respect to the Amendment Act does not provide any guidance concerning the rationale for the changes or the meaning of the new phrases.

13.       The expression “body corporate” is not defined by the Act. It appears in a number of other sections in the Act including, for example, s.349.’

56                  Notwithstanding that the common modern phenomenon of private persons acting as trustees for others, including corporations, in large commercial ventures involving employment, including on a substantial scale, has apparently not excited the attention of the drafters of the legislation, the legislative policy appears to be to limit the exposure of individual people to large penalties.  Such individuals might be employees or employers (usually, in the latter case, on a small scale).

57                  All Commonwealth statutory interpretation is now, as a matter of Australian statutory and common law to be undertaken from the outset in a purposive and contextual way:  s 15AA of the Acts Interpretation Act 1901 (Cth) and CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408;  Newcastle City Council v GIO General Ltd (1997) 191 CLR 85, 99, 112.  Thus viewed, the question is whether s 178 should be construed so as to give the Commonwealth the benefit of the lower penalties thought appropriate by the legislature for natural persons.  It may immediately be observed that if the statute gives such a benefit to the Commonwealth, it works a corresponding detriment to any person or organisation suing the Commonwealth to recover a penalty from it.  Such a result appears inconvenient and unlikely to have been part of the legislative policy.  The Act is concerned with matters to do with relations between employers and employees.  The largest employer in the nation is, and for many years has been, the Commonwealth itself.  The Commonwealth, it was expressly contemplated, would be bound by agreements and awards made or operative under the Act.  The Commonwealth, although no doubt less liable than some private employers to seek to evade its obligations under such an agreement or award, is as liable as many to misunderstand or, for a variety of reasons, otherwise simply to fail to observe such obligations.  I am unable to see why Parliament might have intended that an employee disadvantaged by such a failure on the part of the Commonwealth should be limited in his or her ability to recover a penalty to what would be available against a natural person, and to one-fifth of what would be available from a family company, however small.

58                  Nevertheless, context and inferred legislative policy may have to give way to an intractable statutory text.  In my opinion, however, there is no such obstacle.

59                  The respondent’s argument is that s 22(1)(a) of the Acts Interpretation Act 1901 (Cth)recognises a distinction, otherwise valid, between a body politic and a body corporate.  Thus the respondent, undoubtedly being a body politic, cannot be a body corporate for the purposes of the Act, and falls within the category of ‘other cases’ referred to in s 178(4).  The respondent submits:

‘28.      … In this respect a comparison should be drawn between s.2A of the Trade Practices Act 1974 (the “TPA”) and s 6 of the Act.  Section 2A of the TPA makes clear that the word “corporation” in the body of the Act should generally be read to include “the Crown in right of the Commonwealth”.  No such provision  appears in s.6.  Had Parliament intended that the words “body corporate” appearing in the Act should include the Respondent, it would have said so in express terms, as it did in s.2A of the TPA.  The difference between the two legislative schemes is telling.’

60                  The Shorter Oxford English Dictionary (3^rd ed.) captures the ordinary meaning of ‘body corporate’ in a legal context in one of the meanings given for ‘body’:  ‘An artificial “person” created by law; a corporation’.  The same dictionary gives as the definition of ‘corporation’ in a legal context:  ‘A body corporate legally authorised to act as a single individual;  an artificial person created by royal charter, prescription, or legislative act, and having the capacity of perpetual succession’.

61                  The Australian Constitution, in the covering clauses, is described as “An Act to constitute the Commonwealth of Australia’.  The preamble recites that ‘the people of’ the States (then excluding Western Australia) ‘have agreed to unite in one indissoluble Federal Commonwealth under the Crown … and under the Constitution hereby established’.  Section 3 empowered the Crown to declare that ‘the people of’ the States ‘shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia’.

62                  In the Constitution itself, Chapters I, II and III provide for the vesting and manner of exercise respectively of the legislative, executive and judicial powers ‘of the Commonwealth’ to be vested in the organs established:  ss 1, 61 and 71.  Section 61 provides that the executive power ‘is vested in the Queen and is exercisable by the Governor-General’ as her representative.  That power is also declared to ‘[extend] to the execution and maintenance of this Constitution, and of the laws of the Commonwealth’.  In Chapter III, s 75(iii) contemplates that the Commonwealth ‘or a person … being sued on behalf of the Commonwealth’ might be a party to judicial ‘matters’.  Section 78 confined the power of the Parliament to ‘make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power’.

63                  Section 6 of the Act provides:

‘(1)      This Act binds the Crown in each of its capacities.

(2)       However, this Act does not make the Crown liable to be prosecuted for an offence.’

64                  The terms of subs (2) appear to underline that the Commonwealth might be sued for a penalty.

65                  Section 64 of the Judiciary Act 1903 (Cth) provides:

‘In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject.’

66                  For present purposes, the intendment of s 64 appears to be, among other things, to give a person suing the Commonwealth to recover a penalty for contraventions of the Act the same remedies that would be available if the Commonwealth did not have its governmental character.  Apart from any possible intrinsic implications from its governmental character, the Commonwealth, as the provisions of the Constitution referred to above make clear, is a body of people which may be sued as such, and as if it were, an individual.  With or without reference to s 64 of the Judiciary Act 1903 (Cth), that, in my opinion, is enough to indicate that the Commonwealth, at least for the purposes of s 178, is a ‘body corporate’.

67                  The governmental character of the Commonwealth as a body politic and the terms of s 22 of the Acts Interpretation Act 1901 (Cth) do not, in my opinion, provide any adequate, let alone compelling, reasons for viewing the matter differently.  As a matter of ordinary language and legal possibility, a body politic may also be a body corporate or be equated to such:  they are not mutually exclusive categories.  A body corporate may have a governmental character:  various types of local government bodies both here and elsewhere in countries of the common law tradition are examples of this, as are some instances of specific-purpose, trading corporations set up by governments.  There is no reason why a body politic, in the sense of an organised State or part of a State, might not also be a body corporate.  A State legislature could proclaim local government entities as bodies politic and bodies corporate.  Undoubtedly, the Commonwealth is a body politic.  However, it appears to me that, by virtue of the Constitution and the legislation to which I have referred, there is no reason why it cannot be regarded as a body corporate for the purposes of s 178 of the Act.  By the use of the term ‘body corporate’, a wider class of entities than merely trading corporations was clearly envisaged.  It would be entirely consistent with s 6 of the Act to regard the term as including entities with a governmental character, provided they also have the necessary corporate character.  In my opinion, the Commonwealth has such a corporate character.

68                  The purpose of s 22(1)(a) of the Acts Interpretation Act 1901 (Cth) is to indicate that, subject to context, expressions used to denote persons generally such as ‘person’ should not be limited to natural persons:  see s 22(1)(aa).  In referring to bodies politic as well as to bodies corporate, the provision emphasises the prima facie inclusiveness of expressions such as ‘persons’.  It was unnecessary for the creation of that emphasis for the framers of the section to acknowledge in a considered way that there was an unbridgeable gulf between bodies politic and bodies corporate, and in my opinion they did not do so.  Far less does s 22(1)(a) so provide.  Quite apart from s 22(1)(a), a body politic might or might not be regarded for a particular legal purpose as having some of the attributes of a natural person.

69                  The respondent’s reference to the Trade Practices Act 1974 (Cth) (‘the TPA Act’) casts no light upon the Act.  That Act is primarily concerned with aspects of the conduct of trading corporations.  In order to subject the Commonwealth, when directly carrying on business activities, to liability as a deemed ‘trading corporation’, s 2A(2) of the TPA Act referred to the Commonwealth as acting ‘as if … [it] were a corporation’.  But ‘corporation’ is itself defined in s 4 of the TPA Act, with an eye to the Constitution as referring to, among other things, a ‘trading corporation’.  The definition, also in s 4, of ‘trading corporation’ directly gives that term its constitutional meaning.  That, in such a context, a provision deems the Commonwealth when carrying on business to be a corporation does not assist at all as to whether, for the purposes of quite different legislation, having quite a different constitutional underpinning, the Commonwealth should properly be regarded as a corporation.

70                  I add that s 352 of the Act does not, for the reasons given by the respondent, affect that question.  Section 352 does not purport to deem the employer of an employee of the Commonwealth to be anyone other than the Commonwealth.  The section provides facilitatory and clarificatory means whereby, for the purposes of the Act, the Commonwealth may conveniently act by agents described as ‘employing authorities’ and whereby persons dealing with the Commonwealth may conveniently do so by dealing with such agents.  Although the relevant ‘employing authorities’ were the Minister of Defence and the Minister of State for Industrial Relations (see Item 3 of Schedule 2 of the Workplace Relations Regulations 1996 (as in force at September 1998), the employer remained the Commonwealth.

71                  I am generally fortified in the view I take by the approach of Hungerford J in Workcover NSW v Police Service of NSW (2000) 50 NSWLR 333.  Section 187 of the Evidence Act 1995 (NSW) abolished the privilege against self-incrimination for bodies corporate.  His Honour held that such abolition was effective against the State.  In particular, his Honour rejected (at [22]) the notion that the concepts of a body politic and a body corporate ‘were mutually exclusive’.  Indeed, as his Honour showed (at [23]), there is much to be said for the view that, in a legal context, as distinct from general modern usage, if such be the preferable view of the context, ‘a body politic is a body corporate … established for a public purpose’.

72                  The respondent criticised that decision on a number of bases.  I need not go into them.  Whatever may be any imperfections of reasoning, the decision in that case appears to me to be correct.  It is, however, correct to say, as the respondent did, that Hungerford J’s conclusion ‘must … be seen in its context’.  Although the present context is different, in its own way, such context, to my mind, supports the conclusion I have reached, as I have sought to indicate.

The appropriate penaltiES

73                  Although a penalty may be ‘sued for and recovered’: s 178(5), essentially a penalty is ‘imposed by the Court’: s 178(1).  A compensatory element plays no part in the quantification of the penalty to be imposed:  the only benefit of the infliction of a penalty to the party recovering it is by way of some possible solace for the wrong done and vindication.  The overriding principle, it seems to me, is that the amount of the penalty should reflect the Court’s view of the seriousness of the offending conduct in all the relevant circumstances.  In cases such as CFMEU v Coal & Allied Operations Pty Ltd (No. 2) [1999] FCA 1714 at [8]; (2000) 47 AILR 4-215 and Community and Public Sector Union v Telstra Corp Ltd [2001] FCA 1364 at [8] – [9]; (2001) 108 IR 228 some of what might be relevant circumstances have been referred to.  The former case has had support in later cases.

Position 12935

74                  The breach of the Agreement was, as indicated, a serious failure to comply with an important requirement, designed to mitigate for individual employees, by avoidance where possible, the frequently devastating effects of the termination of a career in the public service of the Commonwealth.  The breach came about apparently as the result of an insufficient appreciation by those in charge of the Department of the unqualified and unconditional obligation of the Department under cl 21.5.1.  The failure to institute systems to ensure that such obligations would always be met can only be so explained.  The probable effect on Mr Coochey has been crushing, as might readily have been foreseen.  A penalty should be imposed and it should be at or near the maximum on account of the seriousness of the breach.

75                  However, the Department is not shown to have committed such a breach on an earlier occasion.  On that account, the penalty should be moderated.

76                  It is true that the breach persisted from the time Mr Coochey lodged his application until his employment ceased, some weeks later.  In that sense, it could be said that the breach ‘continued’ within the contemplation of s 178(4)(a)(iia) of the Act.  Nevertheless, serious as the breach was, it was a single failure to put appropriate systems in place.  It does not seem to me to be a proper exercise of the Court’s discretion to utilize the continuing breach provisions.

77                  In my view, the appropriate penalty to be imposed is $8,000.

APSLMAP

78                  In this instance also the Department failed fully to comprehend the extent of its duties to Mr Coochey.  There was however some excuse for so doing in that an over-literal reading of the Agreement could support what was done.  Further, it is, overall, unlikely that an earlier referral of Mr Coochey to APSLMAP would have produced any tangible benefit for him.  There was no indication that there was any previous relevant breach. 

79                  In my view, it is sufficient to mark the fact of the breach principally by the infliction of a penalty.  A penalty of nominal quantity will suffice.

80                  I will impose a penalty of $100.

81                  In each case the penalty should be paid to Mr Coochey.

Addendum

82                  As indicated, there is no compensatory element available in the imposition of a penalty.  The amount of the penalties I consider appropriate, together with the inability of the Court to order costs (s 347), is very unlikely in the circumstances to offer any, or any appreciable, consolation to Mr Coochey.  He has nevertheless been done a grievous wrong with large, adverse, economic consequences for him.  Through no personal fault of his, the path to even such inadequate legal vindication as this Court can give him in the current proceedings has been tortuous and slow.

83                  In many other cases the ‘continuing breach’ penalties could provide a measure of solatium approaching, or even exceeding, adequate compensation.  It is to be expected that there would be no repetition by any Commonwealth Department of what has occurred here.  It therefore seems unlikely that what I am about to suggest could furnish any precedent.

84                  In my respectful opinion, it would be a proper exercise of executive discretion if a substantial ex gratia payment were made to Mr Coochey, and I respectfully recommend that the relevant Minister give consideration to that.

Disposition

85                  It will be declared that the respondent breached the Agreement:

(a)                by failure to ensure that the applicant was considered in isolation and not in competition with other applicants for Position No. 12935; and

(b)               by failure to refer him, as soon as possible after the establishment of his status as potentially excess, to APSLMAP.

86                  In respect of breach (a) I will impose a penalty of $8,000.  In respect of breach (b) I will impose a penalty of $100.  In each case the penalties are to be paid to the applicant within twenty-one days.

Associate:

Dated:              24 August 2005

APPENDIX

1.         AGREEMENT TITLE

1.1        This Agreement shall be known as the Defence Employees Industrial Agreement 1998-99: An Agreement Concerning the Implementation of the Defence Reform Program and Initiatives Arising from Public Sector Workplace Relations and Legislative Reforms and is made pursuant to section 170LJ of the Workplace Relations Act 1996.

…

3.1        This Agreement is designed to assist and facilitate the implementation of the Defence Reform Program [referred to below as the DRP] and other initiatives by providing for the introduction of policies, practices and arrangements which lead to a more productive, efficient and flexible environment in Defence workplaces through cooperative workplace relations between management, employees and the unions bound by this Agreement.

…

4.1         The objectives of this Agreement are to:

4.1.1      provide a tangible means of recognising and rewarding the contribution made by Departmental employees to improved productivity and efficiency;

4.1.2      provide a mechanism by which Departmental employees may participate more fully in the process of workplace reform;

4.1.3      establish a personnel management and industrial relations framework that will provide for the implementation of the comprehensive range of reforms within Defence that will take place as the Defence Reform Program (DRP) is progressed further; and

4.1.4      establish a mechanism to maximise the scope for the implementation of the Government’s public sector reforms.

…

5.1         The persons bound by this Agreement are the:

·       Minister for Defence; and employees of the Department of Defence, other than those employed in Senior Executive Service (SES) and Executive Professional classifications; and

·       [Various unions including that of which Mr Coochey was a member.]

…

6.         DEFINITIONS

…

Defence Organisation means the Australian Defence Force and the Department of Defence.

…

7.1         This Agreement is to operate for 18 months from the date which it is certified by the Commission and the nominal expiry date is 29 October 1999.

…

8.2       A new agreement will take immediate effect upon the expiration of this Agreement, however, if a new agreement has not been certified by this time, this Agreement shall continue to apply.

…

11.       DISPLACEMENT OF PREVIOUS AGREEMENTS

11.1       This Agreement displaces the following agreements certified under the Industrial Relations Act 1988 in all respects:

Defence (Restructuring) Agreement 1994, and

Continuous Improvement in the APS Enterprise Agreement 1995-1996.

…

15        FUTURE DIRECTIONS FOR DEFENCE: DEFENCE REFORM PROGRAM

15.1        In April 1997, the Minister for Defence released the report of the Defence Efficiency Review and announced the DRP, based on the Review’s 70 recommendations and findings.

15.2        The DRP represents a fundamental blueprint for ongoing change in the Defence Organisation. It is aimed at providing the means by which the Australian Defence Force (ADF) can achieve the levels of capability, training and readiness which are needed to build and sustain a technology-intensive Defence Force capable of protecting Australia and its interests into the 21st Century.

15.3        The DRP will redirect resources currently used in administration and support functions to directly support the combat elements of the ADF.

15.4        Key Objectives: The DRP represents the most comprehensive program of reforms in the history of the Defence Organisation. Specifically, it is aimed at achieving a more productive, efficient and flexible environment throughout the Defence Organisation by:

•           creating a more strategic corporate approach between the 3 Services and the civilian element of the Defence Organisation;

·                    creating a more consistent approach to policy formulation;

·                    creating common processes for common activities;

·                    eliminating duplication of effort and overlapping activities;

·                    combining existing and revised management processes;

·                    integrating and collocating like functions; and

•           improving cooperation and collaboration between the 3 Services and the civilian element of the Defence Organisation.

15.5     Impact on Employees: This Agreement recognises the contribution that Departmental employees will be making to the comprehensive changes inherent in the DRP as implementation is progressed with particular reference to:

•           the demands made of employees as they are required to undertake existing tasks and responsibilities more effectively and efficiently;

•           the adjustments employees will need to make in undertaking wider or new tasks;

•           the additional responsibilities that many employees will be required to take on as implementation progresses, consistent with classification and Work Level Standards;

•           the impact of moves both functionally and geographically within the Defence Organisation;

•           the uncertainty surrounding the changes taking place or impending changes; and

•           the effect on employees as they move into an environment that is more heavily focused on achieving outcomes and in which individual and collective performance is more rigorously managed and measured and which emphasises the link between employee performance and the corporate goals of the Defence Organisation.

15.6     The Department, employees and their representatives agree to work cooperatively through the implementation of the DRP and are committed to the maintenance of open communication and the application of agreed consultation processes.

15.7     Efficiencies and Savings: The DRP will usher in an extensive range of efficiencies. These efficiencies will lead to recurring savings of around $900 million per annum. …

15.8     …

15.9     Staffing Reductions: A significant element of the efficiencies and recurring savings estimated to arise from the DRP is predicated on civilian staffing reductions which will take place over a period of around 3 years. The Department aims to reduce staffing levels by at least 3100.

15.10   It is estimated that approximately a quarter of the total number of staffing reductions will be achieved in 1997-98, the first year of implementation. It is also proposed that significant numbers of civilian positions will be market tested during the life of the DRP - additional to those which would have otherwise been tested under the Commercial Support Program.

15.11      Timing: Initial structural, organisational and management changes were effected from 1 July 1997 with the establishment of new functionally based programs. The completion of changes to structure, organisational elements and management processes will be achieved over a 4 year time frame extending from 1 July 1997.  …

…

PART 3 - REDEPLOYMENT AND RETRENCHMENT PROVISIONS

17.       REDEPLOYMENT AND RETRENCHMENT

17.1     This Agreement introduces revised redeployment and retrenchment provisions designed to streamline the administration of redeployment and retrenchment procedures and improve the quality of assistance to be provided to excess and potentially excess employees.

17.2     A redeployment directorate will be established in the Workplace Relations Branch early in the life of this Agreement. It will improve the coordination of Departmental redeployment initiatives and ensure the consistent application of agreed redeployment procedures. It will be staffed by appropriately skilled employees dedicated to the task of assisting excess and potentially excess employees.

17.3     The existing administrative arrangements in relation to:

·                    advising unions about excess employee situations,

·                    making formal offers of voluntary retrenchment,

·                    declaring employees excess to requirements, and

·                    retiring employees under section 76W of the Act;

shall be maintained. 

18.       PRINCIPLES

18.1     The Department will provide employees who are excess or potentially excess because of structural, organisational or technological change with assistance to maximise redeployment opportunities and, as much as it is practicable, to avoid involuntary retrenchments.

18.2     The Department will:

18.2.1  ensure that excess and potentially excess employees are fully informed of all relevant redeployment and retrenchment arrangements including all assistance available to them.

18.2.2  aim to match, as closely as possible, the abilities and skills of excess and potentially excess employees to the requirements of vacant positions, and to take into account the wishes and interests of those staff to the maximum extent possible. This extends not just to choice of duties but also to preference of work locations. It is the Department’s objective to settle each case on a mutually acceptable basis.

18.2.3  provide the necessary personnel and financial resources required to meet its obligations under this Agreement regardless of where staff are located.

18.2.4  provide excess and potentially excess staff with reasonable training/retraining or on-the-job training (OJT) with the purpose of helping staff to cope with changes to their employment and/or to enhance their redeployment prospects.

18.2.5  place priority on redeploying excess and potentially excess employees in Defence or within the wider APS. However, the Department recognises that in certain circumstances redeployment opportunities within the APS may be limited and assistance for excess and potentially excess employees should therefore be directed towards equipping them for employment in the private sector.

18.2.6  make every effort to expedite an employee’s voluntary retrenchment in situations where this course of action is acceptable to both the Department and the employee involved.

18.3     There is an obligation on excess and potentially excess staff to act in a responsible and reasonable manner and to consider seriously any offers of redeployment, training/retraining and OJT made to them by the Department. In addition, it is expected that excess and potentially excess employees will pro-actively pursue redeployment opportunities.

19.       DEFINITIONS

Excess employee means an employee who has been notified in writing by the Department that he or she is excess to the Department’s requirements because:

•     the employee is included in a class of employees employed in the Department, which class comprises a greater number of employees than is necessary for the efficient and economical working of the agency; or

•     where the duties usually performed by the employee are to be performed at a different locality, the employee is not willing to perform duties at the locality and where the Department has determined that it would be unreasonable for the employee to take up employment at the new locality.

Potentially excess employee means an employee who has been advised in writing by the Department that he or she is potentially excess to the Department’s requirements. An employee may be certified as potentially excess only where that employee, as a result of organisational change, is likely to be displaced and/or is unable to be permanently placed in a position at the employee’s nominal level within his/her Program and at the locality at which he or she works.

20.       APPLICATION

20.1          These provisions apply to excess and potentially excess employees of the Department of Defence who are employed under the Act …

…

21        REDEPLOYMENT ARRANGEMENTS - POTENTIALLY EXCESS EMPLOYEES

21.1       The Department will assist potentially excess employees to obtain redeployment at or below their nominal level elsewhere in Defence, or with other APS agencies. In situations where redeployment in the APS is unlikely, assistance will be provided for employees to seek employment in the private sector.

21.2       The Department will negotiate, on a case by case basis, with interested parties where a potentially excess employee (eg with a compensable injury or disability) would be particularly disadvantaged by the redeployment process.

21.3       When an employee becomes potentially excess to Departmental requirements, the Department will provide prompt written advice to the employee outlining the reasons he or she has become potentially excess. Such advice will include a summary of the employee’s entitlements and conditions of employment.

21.4       Before a potentially excess employee is declared excess and commences a formal retention period the Department will consult with the employee and the relevant union (see 23.4 for details) and provide the employee with an opportunity to:

21.4.1  be referred to the relevant central agency responsible for APS wide redeployment;

21.4.2  access advice and assistance from a redeployment officer, and information on vacancies and redeployment prospects within the Department and wider APS;

21.4.3  undertake Tier 1 and Tier 2 training and services where:

21.4.3(a)    the purpose of Tier 1 training and services is to assist potentially excess employees understand their entitlements, adjust to change, make decisions, cope with stress, identify redeployment and retraining options, and upgrade job seeking skills;

21.4.3(b)    under Tier 1, potentially excess employees are entitled to have any training gaps in their skills and competencies identified through professional careers advice, participation in a Recognition of Prior Learning (RPL)/Recognition of Current Competencies (RCC) exercise performed by an agreed assessor, or participation in an appropriately certified vocational assessment;

21.4.3(c)    the purpose of Tier 2 training is to provide potentially excess employees with the opportunity to upgrade or gain skills and qualifications which are likely to enhance the employee’s redeployment prospects either within the APS or industry generally:

21.4.3(c)(i)       the Tier 2 training requirement is usually identified through participation in an RPL/RCC exercise or vocational assessment. Tier 2 training comprises on the job training and/or appropriate short courses of no longer than 6 months duration;

21.4.3(c)(ii)      in compelling circumstances the above periods of training may be extended by agreement;

21.4.4  receive financial counselling and the opportunity to elect voluntary retrenchment (see 22 for voluntary retrenchment procedures and entitlements).

21.5        Potentially excess employees have the following entitlements:

21.5.1 the Department will consider potentially excess employees in isolation from, and not in competition with, other applicants for advertised vacancies at or below the employee’s nominal level for which the employee applies. Excess employees will have preference over potentially excess employees:

21.5.1(a)   …

21.5.2 income maintenance in accordance with 21.9 for a period of 12 months, if an employee is redeployed to a position which attracts a lower maximum salary;

…

21.6        Where appropriate the Department will provide potentially excess employees with the following:

21.6.1  reasonable absence on duty to attend job interviews.

21.6.2  reimbursement of reasonable travel and incidental expenses incurred attending job interviews (where the prospective employer does not meet these expenses).

21.6.3  reasonable expenses as if the employee was being transferred in the public interest, if the employee is redeployed to a position which requires a change in the employee’s residence.

…

22.       VOLUNTARY RETRENCHMENT

22.1       The Department may invite potentially excess employees who are likely to become excess to Departmental requirements, or excess employees to elect to take voluntary retrenchment.

…

22.4        Agreement of the Employee: No formal written offer of voluntary retrenchment will be made to a potentially excess employee unless that employee has advised in writing that he/she agrees that such an offer be made.

…

22.7        Offer Period: An employee must advise the Department of his/her decision to either accept or decline a formal written offer of voluntary retrenchment within 21 days (offer period).

22.8        Declining an Offer: A potentially excess employee who declines, or does not respond to, a formal written offer of voluntary retrenchment will become subject to the provisions of 23.

22.8.1 Where an employee declines a formal written offer of voluntary retrenchment, no further offer can be made.

…

22.13   Severance benefit: An employee retrenched under 22 is entitled to be paid a sum equal to 2 weeks salary (as defined in 22.13.4) for each completed year of continuous APS service, plus a pro rata payment for completed months of service since the last completed year of service.

…

22.13.2 Notwithstanding 22.13, the minimum severance benefit payable will be 4 weeks salary and the maximum will be 48 weeks salary.

…

22.13.6   Special Benefit: An employee who accepts a written offer of voluntary retrenchment and is retrenched within 14 days of the end of the 21 day offer period will be entitled to be paid a special benefit equal to 4 weeks salary (as defined in 22.13.4).

22.13.7 Withdrawal of Offer: In some circumstances it may not be appropriate for the employee or the Department to finalise a written offer of voluntary retrenchment. In such a case the Department may withdraw that offer.

23.       REDEPLOYMENT ARRANGEMENTS - EXCESS EMPLOYEES

23.1        Notification of Excess: The Department may notify a potentially excess employee that he or she is excess to Departmental requirements.

23.1.1 A notification under 23.1 will be in writing and include advice of an employees retention period under the provisions of 23.5.

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23.5     Retention Periods: An excess employee is entitled to a retention period of 7 months.

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23.5.4 During the retention period the Department will continue, consistent with the interests of efficient administration, to assist an excess employee to transfer to a suitable vacancy of equal or lower level within the Department or the wider APS.

23.6     Offer of Voluntary Retrenchment: The Department will make a formal written offer of voluntary retrenchment, in accordance with the provisions of 22, to an excess employee within 2 months of the commencement of their retention period.

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23.9     Transfer With or Without Consent: The Department may transfer excess employees to equivalent or lower level positions with or without their consent.

23.9.1 Notwithstanding the provisions of 23.5, excess employees who are transferred on reduction are entitled to income maintenance for 12 months from the date of declaration.

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30.1       The Department may make an Australian Workplace Agreement (AWA) with an employee or employees whose terms and conditions of employment are regulated by this Agreement, provided the Secretary is satisfied that the proposed AWA is in the interests of the Department.

30.1.1  Such AWAs may either:

·       operate to the exclusion of this Agreement; or

·       incorporate the terms of this Agreement, but prevail over these terms to the extent of any inconsistency,

as specified in each AWA.

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38.              REVISED CLASSIFICATION STRUCTURE

38.1     New APS-wide structural arrangements for selected classifications, involving an 8 level non-SES arrangement are introduced through this Agreement as follows:

APS level 1

APS level 2

APS level 3

APS level 4

APS level 5

APS level 6

Executive level 1

Executive level 2

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66.1     The only avenue of review for employees against termination of employment for any reason is to be through the termination of employment provisions of the Workplace Relations Act 1996 (Part VIA, Division 3).