FEDERAL COURT OF AUSTRALIA

Perry v Commonwealth of Australia [2017] FCA 943

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

TRACEY J:

1    In 1988 meat inspection services which were formerly provided by the State of Victoria were transferred to the Commonwealth. Meat inspectors who were employed by the State were offered equivalent employment in the Commonwealth public service. The applicant, Mr Peter Perry, was one of those inspectors.

2    Various issues arose about the terms on which the Commonwealth would engage Victorian meat inspectors and as to the preservation of accrued entitlements which they enjoyed. These issues were resolved through negotiations involving representatives of the Victorian meat inspectors and the Commonwealth. The outcome of these negotiations was recorded in various documents.

3    Mr Perry accepted the Commonwealth’s offer of employment and served as a meat inspector in the Australian Quarantine and Inspection Service (“AQIS”) from 1988 until 2010. He then accepted an offer of “accelerated separation”, which culminated in his voluntary retrenchment.

4    A dispute subsequently arose as to the quantum of the payments to which Mr Perry claimed to be entitled by way of superannuation and retrenchment benefits following his retrenchment.

5    In this proceeding Mr Perry sues the Commonwealth for breach of what he contends was a contract to which he was a party which was entered into at the time he transferred from the Victorian to the Commonwealth public service. Alternatively, he relies on the terms of what he says was a contract entered into immediately before his employment concluded. He further says that the purported contractual terms constituted “safety net contractual entitlements” under s 542 of the Fair Work Act 2009 (Cth) (“the FW Act”).

6    In his Amended Originating Application Mr Perry seeks a declaration pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) that he was entitled to a safety net contractual entitlement within the meaning of s 542 of the FW Act, a declaration that the Commonwealth failed to provide him with that entitlement, and an order under s 543 of the FW Act that the Commonwealth pay him the amount claimed (including interest on that amount). Alternatively, he seeks a declaration that the Commonwealth breached its contract with him, an order that the Commonwealth compensate him for the loss and damage sustained as a consequence of that breach, and interest on the amount ordered in compensation.

7    In order to appreciate how these issues arose it is necessary to recount, in some detail, the circumstances in which the alleged contractual arrangements were said to have been negotiated and perfected, examine the documents which explained the arrangements and to notice various statutory provisions which had a bearing on the conditions on which the meat inspectors moved from State to Commonwealth employment.

THE BACKGROUND FACTS

8    Mr Perry commenced employment as a meat inspector with the State of Victoria in 1985. In that year he began making contributions to a superannuation fund operated by the then State Superannuation Board of Victoria. The operation of the fund and the superannuation scheme of which Mr Perry was a member, was, at that time, governed by the Superannuation Act 1958 (Vic) (“1958 Act”). The particular scheme of which Mr Perry was a member was known as the “revised scheme”. At the time of his retrenchment in 2010, Mr Perry was still member of the revised scheme, although the legislation which governed it had changed. For convenience in these reasons, the fund to which Mr Perry made contributions will be referred to as “the Victorian State superannuation fund” and the scheme of which he was a member will be identified as “the Victorian State revised superannuation scheme”.

9    In 1987, following an agreement between the Commonwealth and Victorian State governments (“the 1987 Agreement”), the Victorian Parliament passed the Abattoir and Meat Inspection (Arrangements) Act 1987 (Vic) (“the Arrangements Act”). Section 5 of the Arrangements Act authorised the responsible State Minister to make arrangements with the Commonwealth for the inspection of meat in Victoria. That Act also contemplated, in s 5 when read with s 6, the making of arrangements for meat inspectors who were employed by the State to be offered employment by the Commonwealth. It also provided, at s 7, that a State inspector who transferred to the Commonwealth service could elect to continue his or her membership with a Victorian State superannuation scheme.

10    In order to facilitate the transfer of the employment of meat inspectors from the State to the Commonwealth a series of meetings took place which were attended by representatives of the Commonwealth, the State, and the union then representing meat inspectors, the Victorian Public Service Association. These negotiations led to agreement as to the conditions of employment to be offered to inspectors who chose to transfer to the Commonwealth public service. The agreed conditions were recorded in a document entitled “Transfer of the Victorian Meat Inspection Service to the Commonwealth: Conditions of Service Package” which became known as “the Blue Book”. There were at least two versions of the Blue Book. It is the final version, dated January 1988, which Mr Perry relied on in order to establish his contractual claims.

11    The introduction to the Blue Book explained its purpose as follows:

On 12 November 1987 the Victorian Parliament passed the necessary legislation to transfer the Victorian domestic meat inspection service to the Commonwealth.

As a result of that announcement, discussions have taken place between Victorian and Commonwealth officials and with both State and Federal staff associations. These discussions have centred on the details of the transfer arrangements.

As a result of these discussions many aspects of the transfer have now been resolved.

This booklet sets out the details of the CONDITIONS OF SERVICE you currently have in the State Service and those you will enjoy as Commonwealth employees.

All salary, travel and other allowance rates in this book have been recorded as those existing at 1.1.88. Those you ultimately receive will, of course, include any subsequent increases.

The information provided here must be read in conjunction with the associated booklet “THE INFORMATION PACKAGE” which covers those matters which have to do with the actual day to day administrative aspects of your employment and the operation of the Commonwealth’s Inspection Service, eg training, leave rosters, key contact points in the DPI Victorian Regional Office, how the organisation actually works, etc.

In addition to these two booklets, we also intend to conduct a series of information sessions for all Victorian State staff at a number of centres throughout the State. At these sessions, details of which will be advised early in 1988 we will provide people from the Commonwealth, the State and staff associations, who can expand on the written information in these two booklets and answer your questions in detail.

These conditions have been negotiated as a ‘package’ – there are pluses and minuses. However, on balance it is the considered view of the Commonwealth and Victorian officials charged with the responsibility of negotiating the transfer that the ‘package’ is a balanced one; that is, no less favourable than those they presently enjoy. It is our understanding that the staff associations have accepted the ‘package’ on this basis.”

12    The Blue Book contained a series of comparisons between extant Commonwealth and Victorian conditions of employment based on what were described as “source documents”, which included legislation, regulations, manuals, determinations, circulars, memoranda and awards from both jurisdictions. Where there were differences between the Commonwealth and State conditions, an agreed position arising out of the meetings was recorded. The agreed position, in each case, contained a summary of some of the terms and conditions which would apply to transferring inspectors or a summary of the options which they might choose to accept.

13    Under the heading “EXCESS STAFF”, on pages 51 and 52 of the Blue Book, the following comparison and a resulting agreed position appeared:

14    The section on excess staff was preceded by one on superannuation at pages 47 to 49 of the Blue Book. That section followed a similar format. It started by setting out summaries of the principal provisions of the Superannuation Act 1976 (Cth), and regulations made thereunder, and the relevant provisions of the 1958 Act. Among the matters covered were the benefits payable under the respective Acts upon age retirement, invalidity retirement, death and resignation. A very brief comparison section recorded that the schemes were “significantly different in design, level of contribution and level of benefits”. The agreed position in relation to superannuation was set out at page 49 of the Blue Book, as follows:

AGREED POSITION

•    For transferees who are members of a Victorian State superannuation scheme, the option within 3 months following transfer, of either:

•    remaining members of the Victorian Scheme; or

•    becoming members of the Commonwealth Superannuation Scheme.

•    For those transferees who are not members of a Victorian State superannuation scheme the option of becoming members of the Commonwealth Superannuation scheme on the date of transfer or any time thereafter.

•    Further specific advice on Superannuation will be given to all transferees.

15    As mentioned in the introduction to the Blue Book, a separate volume, which came to be known as the “Yellow Book”, contained an explanation of the existing arrangements, the rationale for the change to Commonwealth control and the administrative arrangements that were to apply during the transition and its aftermath. The formal title of the Yellow Book was: “Transfer of Victorian Meat Inspection Service to the Commonwealth: The Information Package”. It was also dated January 1988. The purpose of the Yellow Book was explained in its introduction as follows:

This booklet and the associated booklet “Conditions of Service Package” [the Blue Book] have been prepared with the express purpose of informing all potential Victorian transferees of the conditions they will enjoy and the arrangements they will work under if they elect to join the Commonwealth’s Australian Quarantine and Inspection Service (AQIS).

The “Conditions of Service Package” describes in considerable detail the conditions of service you will enjoy as an employee of the Commonwealth while this booklet sets out for you information on some of the more administrative aspects of the way in which the new Inspection Service will operate in Victoria after 3 April 1988.

16    Copies of the Blue Book and the Yellow Book were sent to State inspectors who were to be offered the opportunity of transferring to the Commonwealth service. Mr Perry received these publications whilst he remained employed by the State of Victoria.

17    By letter dated 29 February 1988 Mr Perry was offered employment in the Australian Public Service (“the APS”). The letter of offer, which was signed by the Public Service Commissioner (“the Commissioner”), with formal parts omitted, read:

The Australian and Victorian Governments have decided that the meat inspection function of the Victorian Department of Agriculture and Rural Affairs will be transferred to the Australian Public Service with effect from 3 April 1988.

Staff affected by the transfer who are employed by the Victorian Department of Agriculture and Rural Affairs are now to be given the opportunity of accepting appointment to the Australian Public Service from the date of the transfer, or a later date for those staff who are Branders currently undertaking training to become qualified Meat Inspectors.

This letter is being sent to all staff of the Victorian Meat Inspection Branch, including those on extended sick leave or extended workers’ compensation leave, except Branders who do not have a Meat Inspector’s Certificate of Competency or who are not presently undertaking the certificate course.

The purpose of this letter is to inform you that you may elect to be appointed to the Department of Primary Industries and Energy in the Australian Public Service as a Meat Inspector Grade 1 headquartered in Castlemaine.

Your salary on appointment will be $22451. If you would normally receive an incremental adjustment to your salary between the date of this letter and 3 April, the adjustment has been included in the calculation of your salary on appointment.

If the Commonwealth salary is less than the salary paid to you by the Victorian Service at the date of transfer, your salary will be maintained on appointment and adjusted in the future to the level you would have received in the Victorian Service, until such time as subsequent wage increases in the APS reach or exceed that level.

The Conditions of Service Package and Information Package which have been forwarded to you provide details of your conditions of employment on appointment to the Australian Public Service. These booklets were supplemented by General Information Sessions on the transfer arrangements given in February and I understand that Superannuation Information Sessions are to be conducted during March.

Should you wish to accept this offer of appointment, you must complete the attached Election Form and return it to Mr Stephen Gunn, Department of Primary Industries and Energy at the address indicated, marked personal and confidential.

Under the provisions of the Australian Public Service Act, your election to accept appointment must be made within 21 days of the date of this letter. If you do not wish to accept this offer, please complete the Election Form in the appropriate manner and return it to the address indicated.

18    By further letter dated 16 March 1988 Mr Perry was informed that his remuneration as at 3 April 1988 would be $23,358.

19    On 21 March 1988 Mr Perry signed a form in which he elected to be appointed to the APS in the Department of Primary Industries and Energy. The document was headed: “DIVISION 8A OF THE PUBLIC SERVICE ACT – SECTION 81B(1) APPOINTMENT ELECTION.”

20    On 28 March 1988 Commonwealth and State Ministers entered into what was described as “an arrangement” between the Commonwealth and the State of Victoria (“the 1988 Arrangement”). Under Clause 2.1 of the 1988 Arrangement former State inspectors who elected to move to Commonwealth employment were to be:

transferred to and employed by the Commonwealth, subject to Division 9A of Part III of the Public Service Act 1922 and in accordance with the conditions set out in the Conditions of Service Package agreed between the Commonwealth and the State [the Blue Book].

21    Clause 2.2 of Schedule 2 of the 1988 Arrangement provided that the Commonwealth would be liable to Victoria for the employer contribution in respect of each of the former Victorian inspectors who chose to continue to contribute to a Victorian State superannuation scheme.

22    Clauses 8 and 10 of Schedule 2 provided:

8.    In the event of the Commonwealth Department applying voluntary or compulsory retrenchment to a transferred officer, the Commonwealth will be responsible for paying all employer costs being accrued leave and severance pay associated with the retrenchment.

…

10.    The remuneration and other conditions of appointment and employment of transferred officers are as set down in –

(a)    The Conditions of Service Package, January 1988 [the Blue Book]

(b)    The Information Package, January 1988 [the Yellow Book]

which are appended to this Arrangement.

23    By an instrument of appointment, issued under subsection 81B(1) of the Public Service Act 1922 (Cth) (“the PS Act”), and dated 31 March 1988, the Commissioner appointed various persons, including Mr Perry, “as officers of the Australian Public Service, with the rates of salary and classifications” as were specified in schedules to the instrument. Mr Perry’s appointment was to take effect on 3 April 1988.

24    In about June 1988 Mr Perry made an election, pursuant to s 7 of the Arrangements Act, to continue to contribute to the Victorian State superannuation fund. He remained a member of the Victorian State revised superannuation scheme, that is the scheme provided for in the1958 Act.

25    Under s 35(1) of the 1958 Act, as it stood when the Blue Book was published in January 1988, a contributor to the Victorian State superannuation fund, upon retrenchment, was entitled to a lump sum payment of an amount equal to 3.5 times the amount of the contributions made during the term of service. Section 35(1) provided as follows:

35. (1) In the event of the retrenchment of a contributor he shall be entitled —

(a)    to a lump sum payment of amount equal to three and one-half times the amount of the contributions he has made during the term of his service and the Treasurer shall pay into the Fund two and one-half times the amount of his contributions, and the Consolidated Fund is hereby to the necessary extent appropriated accordingly; and

(b)    if he has contributed for 15 years or more and has attained the age of 50 years, to elect either to take a lump sum payment under paragraph (a) or a pension entitlement pursuant to the provisions of section 36(1)(b)(ii).

26    This version of s 35 was introduced by s 4 of the Superannuation (Amendment) Act 1977 (Vic). The 1958 Act was subsequently repealed with effect from 1 July 1988 and was replaced by the State Superannuation Act 1988 (Vic) (“the 1988 Act”). The scheme itself continued to operate, subject to variation, under the 1988 Act. The option formerly provided for in s 35(1) of the 1958 Act was no longer available to Mr Perry under the 1988 Act and was not available to him under that Act when he retired in 2010.

27    There matters rested until February 1990 when the Commonwealth decided that ten of Mr Perry’s former State colleagues, who had transferred to the APS, were redundant. An industrial dispute arose as to their entitlements and, in particular, whether they were able to claim what was called a “top up payment” and whether it was the Commonwealth or Victoria which was obliged to make the payment. The “top up” which was being sought was the difference between the amount payable under the relevant Victorian superannuation scheme in the event of retrenchment and the amount which would have been payable under the equivalent Commonwealth scheme. The dispute was dealt with by Cohen J in the Australian Industrial Relations Commission (“the Commission”). During the hearing on 22 October 1990 counsel for the relevant Commonwealth Ministers advised the Commission that:

This dispute only relates to Victoria … . The agreed position between the Commonwealth and the State of Victoria was that in the event of excess staff the Commonwealth provisions would apply, and those remaining in the Victorian superannuation scheme would nevertheless receive the same basis of superannuation payment, that is three and a half times total base contributions.

28    Counsel for the Meat Inspectors Association responded that:

I do not dispute the background of the case as [counsel for the Minister] has given it … . [He] mentions three and a half times the total base of their contributions. I would argue that in fact it is three and a half times the base plus accumulated interest of the total that our members are looking at.

Justice Cohen then intervened and asked whether there was “a point of contention about that”. Counsel for the relevant Ministers replied: “There is no point of contention in relation to that particular remark, your Honour.”

29    Shortly after the hearing the Acting Principal Executive Officer of AQIS wrote to Cohen J. He did so to provide what he said was “background information on the issue of redundancy payments for Meat Inspectors”. The letter, dated 28 November 1990, continued:

BACKGROUND

In April 1988 Meat Inspectors employed by the State and performing domestic meat inspection were transferred from the State Government to the Commonwealth Service. At that time the Inspectors were required to make a choice as to which Superannuation Scheme, the Commonwealth or the Victorian, they wished to contribute to. Advice was offered on this issue to all Inspectors in the form of the “Blue Book” and counselling provided by officers of the Victorian and Commonwealth Superannuation Boards.

The Blue Book provided information on a number of issues including entitlements in the event of excess staff. Attached is a copy of pages 51 and 52 of the book which compares the provisions for excess staff under the Victorian and Commonwealth Superannuation schemes. This information as presented is inaccurate and misleading

•    the Victorian scheme does not allow for the payment of 3.5 times the member’s contribution as indicated but rather uses a formula which is [sic] takes into account aspects such as length of service and the level of contribution

•    it makes no mention of the fact that the Victorian Scheme does not offer redundancy provisions for members over the age of 55

•    it appears misleading or ambiguous in that the document states a calculation of 3.5 times contributions

•    it does not define what the contributions are: are they contributions only or are they contributions plus interest as they are in the Commonwealth Scheme?

•    it is ambiguous in that the “Agreed Position’ is that the parties to the Commonwealth/State Agreement adopt the Commonwealth provisions, but then qualifies this with three options in the case of redundancy depending on which Superannuation option has been selected by the Inspector.

AQIS has adopted a position whereby it acknowledges the problems caused by the Blue Book and has interpreted the intention of the book as being that the Inspectors who elected to continue contributing to the Victorian Scheme were to receive conditions comparable to those of Commonwealth Inspectors. The actual reading of the Blue Book however would appear to provide the Inspectors with a redundancy payment of:

3.5 X (base contributions plus interest).

AQIS acknowledges this interpretation and agrees to ensure that Inspectors receive a payment that is equivalent to it

(Emphasis added.)

30    Mr Perry sought to rely on some of these passages to support his submission that “contributions” for the purposes of calculating the top up payment meant “total contributions including accumulated interest”. Given the significance of the alleged admissions made by the Commonwealth in the course of the proceeding before the Commission, a number of interpolations should be made at this point.

31    The Commonwealth objected to the admission of this correspondence as evidence in this proceeding on the ground that the letter post-dated the formation of the alleged contract and could be of no assistance in determining its existence or its terms: cf Atco Controls Pty Ltd (In liq) v Newtronics Pty Ltd (Receivers and Managers Appointed) (In liq) (2009) 25 VR 411 at 424; [2009] VSCA 238 at [44] (Warren CJ, Nettle and Mandie JJA).

32    The concession in the letter, that the information in the Blue Book relating to the comparison of the Commonwealth and Victorian State superannuation schemes was misleading, was wrongly made. On the contrary, the information in the Blue Book was accurate. The Victorian scheme, as in force in January 1988 under the 1958 Act, did allow for the payment, upon retrenchment, of a lump sum in an amount equal to 3.5 times the member’s superannuation contribution: see s 35(1). It appears that the author of the letter to Cohen J had examined the provisions of the scheme as it operated under the 1988 Act which, it will be recalled, did not come into force until mid-1988 and did not provide for a payment so calculated.

33    These errors, earlier made in the letter, were compounded in the concluding paragraphs of the same document, which read:

As the payments will be made by the Victorian Superannuation Scheme this position creates difficulties

•    we believe that the Victorian Treasury would have difficulty in funding the payments as they were not planned and initiated by that Government

•    arrangements for a loan have been agreed in principle which will resolve this issue

•    the Victorian Superannuation Scheme can only pay up to the level of the provisions provided for in its controlling legislation

•    to bring the payments in-line with Commonwealth provisions would require in some cases a top up.

34    The Commonwealth contended that, because of the fundamental errors, on which the various errant statements were based, there was nothing in the letter which could operate as an admission about the presumed intentions of the parties to the discussions in the early part of 1988. This submission must be accepted given that the negotiations took place while the 1958 Act remained in force and the comparison being made was between the then extant State and Commonwealth schemes. Mr Perry’s superannuation entitlements were those provided for under the Victorian State revised superannuation scheme as in force from time to time.

35    The Commonwealth maintained, in the Commission, that it had no legal obligation to make the top up payments. Nonetheless, it determined to make ex-gratia payments to the ten redundant employees, none of whom was in receipt of an ongoing superannuation pension. This was done because the Commonwealth, mistakenly, believed that the redundant inspectors had been misled by the terms of the Blue Book and in order to ensure industrial peace.

36    I resume the narrative in 1993 when the Public Sector Superannuation (Administration) Act 1993 (Vic) was passed. Under amendments to the 1988 Act introduced by this Act, former State inspectors, like Mr Perry, were able to elect to remain members of the Victorian State revised superannuation scheme or join a new one. Mr Perry and some others elected to remain members of the revised scheme.

37    Between 1996 and 1999 at least three other inspectors left the service of the Commonwealth upon retrenchment. Each received a top up payment calculated on the basis of contributions plus interest.

38    In late 2009 or early 2010, Mr Perry was advised that consideration was being given to declaring him “excess” and that he might be able to benefit from an offer of “accelerated separation”. Under Clause 46.5 of the Meat Program Agreement 2007–2010, the Department of Agriculture, Fisheries and Forestry (“the Department”), which was, at that time, the name of the department in which Mr Perry worked, could offer an APS meat inspector an “accelerated separation” leading to retrenchment where the Department considered the inspector to be potentially excess to core staffing numbers. Clause 46.18 provided for offers of voluntary retrenchment. Mr Perry determined to explore his options. His queries generated conflicting and confusing advice.

39    By letter dated 30 March 2010 a manager in the Department advised Mr Perry that he would be entitled to a “top up” payment. The letter went on:

I have been advised by your superannuation fund that your contributions to 1 April 2010 equal $74,827.90. Based on this information and the estimate that was provided to you in February the estimate of your ‘top up’ payment is $153,698.

Please note that this is an estimate only and it will change depending on the date your final payment occurs.

40    Shortly afterwards Mr Perry received another letter from the Department. It was dated 8 April 2010. The letter contained information from Emergency Services & State Super (“ESS Super”), which, by that time, was the entity responsible for the Victorian State revised superannuation scheme. Relevantly the letter advised that:

On 22 March 2010 you provided the following information from ESS Super in relation to your superannuation payout:

Immediate Lump Sum:            $47,887.76

Preserved Lump Sum:            $123,757.57

Total Contributions and Interest:    $171,645.33

ESS Super has also advised that as at 1 April 2010 your total contributions were $74,827.90.

As you elected to remain with the Victorian Scheme rather than transfer to the Commonwealth Scheme the top up arrangement increases your total superannuation payout on voluntary redundancy to what you would have received had you resigned from the Victorian Scheme and received either a lump sum payment at the time or deferred your benefit in the Victorian Scheme. Based on the agreement outlined in the Transfer of the Victorian Meat Inspection Service to the Commonwealth Conditions of Service Package January 1988 by staying in the Victorian Scheme you are entitled to receive a top up payment of the difference between 3.5 times your total contributions and the superannuation payout you will be eligible to receive from ESS Super.

Using the information provided by ESS Super, the calculation of 3.5 times your total contributions is $74,827.90 x 3.5 = $261,897.65. Therefore the top up is $261,897.65 less $171,645.33 = $90,252.32.

A revised estimate of your final entitlements that will be due to you on separation is also attached. This estimate is based on a revised separation date of 16 April 2010 and identifies your severance pay of $71,983.66

41    Mr Perry’s disputed the calculation of the top up payment in the 8 April 2010 letter because it did not include interest.

42    On 9 April 2010 Mr Perry had a discussion with an officer of the Department relating to the amounts which would be paid to him were he to accept voluntary retrenchment (or accelerated separation). On 10 April 2010 the officer responded to Mr Perry’s queries in an email. Among other things, the email advised Mr Perry that:

The other scenario is that DAFF [the Department of Agriculture, Fisheries and Forestry] offers you voluntary retrenchment. Again assuming a final date of 16 April your final entitlements is an amount of $124,192.07 (gross). The letter that I provided to you on Thursday (8 April) details the breakdown of these amounts.

If DAFF does offer you voluntary retrenchment you will also receive a “top up” superannuation payment of at least $90,252.32 (as outlined in the second letter that I sent to you on 7 April). It is possible that this amount will be revised upward as I am still working to determine whether the method used to calculate the amount of $90,252.37 is the correct one. At present this figure is based on your total employee contributions to the ESS Super fund. As you are aware previous calculations for other employees have been derived using the employee contributions plus interest and I am continuing to research the basis of these calculations. In the event that you accept voluntary retrenchment and it is then established after you have ceased employment that the method of calculating the “top up” is different to that which I have used a further payment would be made to you at that time.

43    By letter dated 13 April 2010, sent by the Department under covering email on 14 April 2010, Mr Perry was offered an accelerated separation. The letter stated that if he elected to accept the offer and was consequently retrenched, he would receive payment of certain amounts including the severance benefit calculated in accordance with clause 46.24 of the Meat Program Agreement 2007–2010.

44    That letter did not refer to any “top up” payment. However, Mr Perry was advised by the covering email, dated 14 April 2010, that the calculation of his final “top up” payment would occur once final figures had been obtained from the Victorian State revised superannuation scheme.

45    On the same day, namely 14 April 2010, Mr Perry accepted the offer of accelerated separation. He proposed a termination date of 15 April 2010.

46    By letter dated 16 April 2010 Mr Perry was informed by the Department of his “final entitlements” due at the separation date of 15 April 2010. He was advised, in the letter, of his entitlements to payment for work done and leave accrued, and of his entitlement to “a severance payment” of $71,983.66. As foreshadowed in the letter of 13 April l2010, the severance payment was to have been calculated in accordance with the Meat Program Agreement 2007–2010.

47    Mr Perry queried the calculation of his final entitlements in the course of a conversation with a departmental manager. In a subsequent letter referring to that conversation, dated 21 April 2010, the manager confirmed the calculation of Mr Perry’s entitlement to severance pay, contained in the 16 April 2010 letter, namely, $71,983.66. There would be no “top up” payment. The manager said, in the letter, that he could discern no legal basis for the making of such a payment to Mr Perry. The letter indicated that if Mr Perry felt that he had been misled in accepting the offer of accelerated separation, on the basis that such a “top up” payment was available to him, he would be given the opportunity to reconsider his decision and be re-instated in his former employment.

48    By letter to the Department faxed on 27 April 2010 Mr Perry confirmed that he wished to proceed with his accelerated separation from the Commonwealth but confirmed oral advice he had given that he could not accept the refusal to include the “top up” in the final calculation.

49    In his Amended Statement of Claim, Mr Perry claimed that, as at 15 April 2010, his personal contributions to the Victorian State revised superannuation scheme totalled $75,053.55 and that interest earned on those contributions was $96,807.43.

50    Mr Perry did not opt to accept a lump sum payment of his full superannuation entitlement from the Victorian State revised superannuation scheme. Although he had been rendered redundant the scheme allowed him to receive benefits on the basis that he had resigned. He elected to receive a lump sum of his contributions and to roll over his remaining entitlements to an accumulation superannuation scheme and to take a pension for life commencing from when he turned 55.

MR PERRY’S CLAIMS

51    Mr Perry advanced a series of contentions in which he asserted that he had a contractual right to receive the top up payment. In his Amended Statement of Claim, his principal contention was that the entitlement arose from express terms constituted by the “excess staff” section in pages 51 and 52 of the Blue Book when read with the letter of offer which he was sent in February 1988. He said that those terms entitled him to a top up payment calculated on the basis that he was entitled to three and a half times the total contributions to the superannuation fund, where “total contributions” referred to employee contributions, employer contributions and accumulated interest. In the alternative, he said that “total contributions” referred to employee contributions only.

52    He contended, in the alternative, that such terms were to be implied to give effect to the 1988 Arrangement and the presumed common intent discerned from the conduct of the parties. He submitted that the “excess staff” provisions in the Blue Book (including the provision for the top up payment) became implied terms of his contract of employment. He again claimed that the quantum of the top up should be calculated having regard to the total amount of employee contributions, employer contributions and accumulated interest.

53    In the further alternative he submitted that what he described as the “separation agreement” arising from the 13 April 2010 offer of accelerated separation and his subsequent acceptance of it gave rise to a legally enforceable agreement pursuant to which he would receive a top up payment. He said that the terms of the separation agreement that provided for the “top up” payment were express and were contained in the letter dated 30 March 2010, the letter dated 8 April 2010 and the email of 10 April 2010. He said, in the Amended Statement of Claim, that the quantum should be calculated by reference to “total contributions” to the superannuation fund “within the meaning of the Blue Book”.

54    Mr Perry also made a claim under s 542 of the FW Act on the basis that the contractual terms on which he relied were “safety net contractual entitlements” for the purposes of that Act.

CONTRACT – THE “EXCESS STAFF” SECTION OF THE BLUE BOOK

55    Although Mr Perry was principally concerned with the “excess staff” section of the Blue Book he submitted that both the Yellow Book and the Blue Book contained most of the terms and conditions of his employment with the Commonwealth. They were the products of negotiations between representatives of the meat inspectors and the Commonwealth. They had been circulated prior to the letters of offers being sent to the inspectors giving them the option of joining the Commonwealth public service.

56    The letter of offer, dated 29 February 1988, which Mr Perry received, was, he said, couched in “language typical of contracts”. The letter contained an “offer of appointment” to the APS which Mr Perry was free to accept or not accept. It contained the annual salary which he would be paid on appointment but very little else by way of terms of conditions which would govern his employment were he minded to accept the offer. The details of his conditions of employment on appointment were, he had been advised in the letter, to be found in the Blue Book and the Yellow Book. The contents of these books, he was told in the letter, had been supplemented by general information sessions on the transfer arrangements held in February 1988 and would be further supplemented by superannuation information sessions to be held in March 1988. Mr Perry gave uncontradicted evidence that he had attended the information sessions and been told that, were he to transfer to Commonwealth employment, his terms and conditions would be those set out in the Blue Book.

57    The letter advised Mr Perry that, if he wished to accept the offer of appointment, he should complete an attached election form and return it to Department. This he did. He originally pleaded that the contract, on which he relied, was formed upon the lodgement of this election form on 21 March 1988. He later amended his claim to assert, in the alternative, that the contract was entered in to on or about 15 April 2010, the day on which his employment with the Commonwealth came to an end.

58    Mr Perry submitted that the introductory part of the Blue Book was expressed in what he described as “promissory, contract-type language”. He placed particular emphasis on the passage which read: “CONDITIONS OF SERVICE you currently enjoy in the State Service and those you will enjoy as Commonwealth employees.”

59    Mr Perry also emphasised that the 1988 Arrangement between the Commonwealth and Victoria stipulated that the terms and conditions of employment of transferred inspectors were to be those contained in the Blue and Yellow Books.

60    The Commonwealth pleaded a multi-layered defence to Mr Perry’s principal claim. It denied that the alleged parties intended to enter in to any enforceable contractual terms based on the Blue Book. Even if such a contract had been entered in to, the Commonwealth contended, the terms relied on by Mr Perry were not to be found in the Blue Book. In any event, its submissions continued, the alleged contract was not performed by Mr Perry and he had suffered no compensable loss.

61    The Commonwealth also submitted that it was precluded, by the provisions of s 81B of the PS Act, from entering in to such a contract, at least to the extent that it contained terms relating to superannuation or redundancy entitlements.

62    Mr Perry’s statutory claims fall to be assessed in a legislative context. As he was advised in the form he signed on 21 March 1988 when he elected to be appointed to the APS, Mr Perry’s transfer from the Victorian to the Commonwealth public service was to be effected pursuant to s 81B of the PS Act. Relevantly that section then provided:

81B(1)    Where the Prime Minister certifies in writing that a function that has been performed otherwise than by persons appointed or employed under this Act is to be performed by persons appointed or employed under this Act, the Board may, notwithstanding any other provision of this Act, appoint to the Service, or direct the employment in the Service of, persons who have been involved in the performance of the function.

…

(5)    For the purpose of facilitating a transfer of persons into the Service under this section, the Board may , notwithstanding anything in any other provision of this Act or in any other law (other than an industrial award) determine any special terms or conditions of employment that are to apply to the persons.

(Emphasis added.)

63    The reference to “the Service” in s 81B is a reference to the Australian Public Service constituted by s 10 of the PS Act: s 7(1) of the PS Act. The reference to “the Board” is to be construed as a reference to the Public Service Commissioner: see Administrative Arrangements Act 1987 (Cth) s 11(7).

64    The term “industrial award” was defined to include an award made under the former Conciliation and Arbitration Act 1904 (Cth): see s 7(1)(b) of the PS Act. One such award, which was in force in 1988, was the Australian Public Service Redeployment and Retirement (Redundancy) Award 1987 (“the RRR Award”). This award, as its title suggests, made provision for the payment of benefits to Commonwealth employees who were rendered redundant. The relevant clauses of the RRR Award were summarised in the “excess staff” section of the Blue Book. The award provided that it was to prevail over any inconsistent provisions of the PS Act or regulations made thereunder: see Clause 17(b). Senior counsel for the respondent submitted that such a clause was permissible due to s 41A of the Conciliation and Arbitration Act 1904 (Cth), which provided that the Australian Conciliation and Arbitration Commission could, in certain circumstances, make an award that was not, or might not be, in accord with a relevant law of the Commonwealth.

65    The phrase “terms or conditions” was defined, in s 81A of the PS Act, to include “terms or conditions relating to salary, pay or allowances, appointment on probation, long service leave or other leave, or tenure”. The definition in s 81A further provided that the phrase “does not include terms or conditions relating to superannuation” (emphasis added).

66    Mr Perry’s case was that the terms and conditions on which transferring meat inspectors would be engaged by the Commonwealth had been agreed in the course of negotiations, recorded in the Blue Book and agreed by the Commonwealth and Victoria in the 28 March 1988 Arrangement. The only role that fell to the Commissioner, following the completion of this process, was the offering of the agreed terms to the inspectors and appointing those who expressed a wish to join the APS.

67    These submissions cannot be accepted. Mr Perry was appointed to the Commonwealth public service pursuant to s 81B of the PS Act. Even if it be assumed that the requirements for the establishment of contractual relations between Mr Perry and the Commonwealth had been satisfied, any provisions, in such an agreement, which dealt with superannuation and the payment of redundancy benefits, could not be determined, by the Commissioner, to be terms of Mr Perry’s engagement by the Commonwealth. Section 81B(5) had the effect that any redundancy benefits to which Mr Perry might have become entitled were those prescribed by the RRR Award and no provision could be made for superannuation benefits. The statutory definition of “terms and conditions” in s 81A of the PS Act meant that the Commissioner could not determine, pursuant to s 81B(5), terms “relating to superannuation”. In my opinion, the contractual terms contended for by Mr Perry requiring a top up payment are terms “relating to superannuation” because it formed part of the sum of superannuation entitlements claimed by Mr Perry. Further, in my view, s 81B(5) also had the effect that the Commissioner could not determine any terms or conditions where the subject matter of those terms and conditions was provided for in an industrial award. Accordingly, any redundancy benefits to which Mr Perry might have become entitled were to be those prescribed by the RRR Award, or other applicable industrial award.

68    Any contractual arrangements, made between Mr Perry and the Commonwealth which preceded his appointment to the APS, and which were not consistent with the provisions of the PS Act, could not be numbered amongst the special terms or conditions of employment offered under the Act.

69    The primacy of the statutory scheme of engagement of public servants was emphasised by the High Court in Director-General of Education v Suttling (1987) 162 CLR 428 at 437–438 (Brennan J, with whom Mason ACJ and Deane J agreed). Speaking of appointments to the New South Wales Education Teaching Service under the Education Commission Act 1980 (NSW) his Honour said that:

Members of the Service are appointed pursuant to the Act and their rights must be ascertained by reference to its provisions. The relationship between a civil servant of the Crown and the Crown has often been described as contractual, though the civil servant has been appointed pursuant to statute: see, e.g., Gould v. Stuart; Carey v The Commonwealth; Lucy v The Commonwealth. However, the contractual nature of the relationship has not been universally accepted: see, e.g., Monckton v Magrath; Morgan v Geddes; The Commonwealth v Welsh; and cf Ryder v Foley. And sometimes an espousal of one view rather than the other has been avoided: see, e.g., Reilly v The King; Kodeeswaran v Attorney-General (Ceylon). If the relationship is contractual, the contract must be consistent with any statutory provision which affects the relationship. No agent of the Crown has authority to engage a servant on terms at variance with the statute. To the extent that the statute governs the relationship, it is idle to inquire whether there is a contract which embodies its provisions. The statute itself controls the terms of the service: McVicar v Commissioner of Railways (N.S.W.).

(Footnotes omitted.)

70    An alternative analysis leads to the same conclusion. That is, there was no scope for the Commonwealth to enter in to any contractual arrangement with Mr Perry prior to and independently of his appointment to the APS by the Commissioner. Any persons who, like Mr Perry, were the subject of a Prime Ministerial certification under s 81B(1), could only be appointed by the Commissioner and then, only on terms prescribed or permitted by the PS Act. No binding contract of employment could be made before the Commissioner had made an appointment under s 81B and the powers of the Commissioner (and the constraints imposed on them) could not be overridden by any pre-existing arrangements to which the appointee was a party.

71    A similar statutory scheme was considered by the ACT Supreme Court in Chapman v Commissioner, Australian Federal Police (1983) 50 ACTR 23. Mr Chapman had been a police officer in the New South Wales public service. He had been offered a job in the Australian Federal Police (“the AFP”) and, because of that offer, he had resigned from the New South Wales Police Force. When his appointment with the AFP was not confirmed, he sought to enforce what he said was a contract of employment founded on an oral agreement which he said had been made between him and an AFP officer pursuant to which he would be employed in the AFP. Alternatively he said that there had been a written agreement. He relied on a letter by which he had been advised that his application to join the AFP had been successful and alleged that by that letter he had been appointed to the role, or, at least, that it had been agreed that he would be appointed. The letter had been accompanied by an “Acceptance of Offer” form which Mr Chapman was invited to sign and return. He had done so. The oral and written representations had been made by an officer of the AFP.

72    Mr Chapman’s claims were rejected by Kelly J.

73    Appointment to the AFP was governed by the Australian Federal Police Act 1979 (Cth). Appointment was effected by an instrument in writing signed by the Commissioner or a delegate appointed by him. No such instrument had been issued to Mr Chapman. The officer who had communicated with Mr Chapman did not hold a relevant delegation. His Honour accepted that an offer of appointment had been made and the offer had been accepted in writing. Nonetheless he held that no lawful or enforceable contract of employment had existed. He said (at 33) that:

Since the [statutory] code, the source of the power, does not include power to appointment by contract, the Commissioner had no power … to make an agreement enforceable against him to appoint a person. This is so, even if discussions between the Commissioner and a prospective appointee are clothed with all the trappings of offer and acceptance such as would establish a contract in accordance with the ordinary rules of contact law … .

… If the duty is to appoint by an instrument in writing that duty cannot be taken away … by any contractual arrangement made by an agent of the Commissioner … .

… The relationship between the Crown and an officer of the Australian Federal Police is not the ordinary contractual relationship between master and servant … .

There was, therefore, no contract to appoint made between the plaintiff and the defendant. No such contract was possible in the circumstances.

(Citations omitted.)

74    A subsequent attempt by Mr Chapman, in this Court, to establish that the correspondence between him and the AFP officer gave rise to an “unenforceable” contract was rejected by Neaves J in Chapman v Reilly [1985] FCA 185 at pp 36–37.

75    Had it been necessary to do so I would have also rejected Mr Perry’s claim that the terms of the Blue Book constituted a contract between him and the Commonwealth.

76    Mr Perry contended that the “excess staff” provisions, contained in the Blue Book, formed part of his contract of employment. He relied on the terms of the letter of offer sent to him in February 1988 which, he argued, were to be considered in the circumstances known to him and the Commonwealth at the time, including the 1987 Agreement and the 1988 Arrangement between Commonwealth and State Ministers.

77    Mr Perry directed particular attention to the language of the letter of offer which, he said, “used the language typical of contacts”. It had been sent by the Commissioner who was the person who, under the PS Act, had the power to appoint Mr Perry to the APS. In sending the letter the Commissioner was said to be acting to implement the employment arrangements which had earlier been agreed by the Commonwealth in the negotiations which led to the publication of the Blue Book. The letter, in terms, referred to the “conditions of employment on appointment” that would be offered to transferring inspectors. The letter indicated that such inspectors would have an opportunity to accept the offer of appointment to the APS and Mr Perry was invited to “elect” to be so appointed.

78    As already noted, Mr Perry had received the Blue Book and the Yellow Book before he received the letter of offer dated 29 February 1988 and those books were said to contain the terms and conditions of employment that would apply were he to be appointed to the APS.

79    Mr Perry bears the onus of establishing a mutual intent to create contractual legal relations between him and the Commonwealth. It was common ground that the existence of such an intention was to be determined objectively having regard to all of the circumstances surrounding their dealings, in so far as those circumstances were known to both of them, and to the purpose and object of the transaction: cf Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at 461–462; [2004] HCA 35 at [22] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ); Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165 at 177–179; [2004] HCA 52 at [35]–[40] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ).

80    It may be accepted that the Commissioner and Mr Perry were aware of the circumstances in which the Commissioner’s offer came to be made. This background knowledge included the 1987 Agreement, the 1988 Arrangement, the negotiations, the preparation and promulgation of the Blue Book and the Yellow Book to explain the outcome of the negotiations, and the explanations which were provided in the course of the information sessions. It does not follow that the hypothetical reasonable observer would have concluded that the Commissioner (acting on behalf of the Commonwealth) and Mr Perry intended to enter in to a contract on terms supposedly found in the Blue Book.

81    The letter of offer of appointment to the APS dated 29 February 1988, which was sent to Mr Perry, invited him to elect to transfer to the APS and to accept a foreshadowed appointment. He was invited to affirm his willingness to accept appointment by completion of the attached standard form which expressly referred to any appointment being made under s 81B of the PS Act. Mr Perry argued that, upon his signing the form, a contract of service had been entered into between himself and the Commonwealth.

82    At the time the letter of offer was sent to and received by Mr Perry the legislative and administrative foundation for the transfer of inspectors to the APS had not been completed. The operation of the Meat Inspection Act 1983 (Cth) had not been extended to Victoria. The Prime Ministerial certification, provided for in s 81B(1) of the PS Act, had not been promulgated. Mr Perry had not yet been appointed to the APS under that Act. Furthermore, the regulations which were to give effect to the agreement that the former inspectors could remain contributing members of the Victorian State superannuation schemes, if they so elected, after their transfer, had not been made.

83    The object of the interactions was Mr Perry’s appointment to the APS, consistently with the PS Act, and subject to any special terms or conditions of employment determined by the Commissioner under s 81B(5) and not containing any terms which the Commissioner was precluded, by the same legislation, from making applicable to Mr Perry’s employment. In particular, it is inconceivable that the Commissioner, in offering employment in the APS to Mr Perry, would have intended to agree to Mr Perry being engaged on contractual terms which the PS Act prevented the Commissioner from prescribing. Any provisions relating to superannuation and redundancy were to be governed, exclusively, by provisions other than those imposed under s 81B: State or Commonwealth legislation in the case of superannuation and an industrial instrument in the case of redundancy.

84    An analysis of the Blue Book supports the Commonwealth’s contention that it was an informational document and not promissory in nature. The material in the book was based, largely, on source documents. For the most part the provisions to which reference was made derived from legislation or industrial instruments. As in the case of the “excess staff” provisions a comparison was made between the provisions of the RRR Award relating to redundancy and provisions of the Public Service Act 1974 (Vic), described as the “Victorian Public Service Act” at page 51 of the Blue Book. A summary of the principal provisions of the legislation was set out and a comparison made. The “agreed position” was to adopt the Commonwealth provisions. This meant that inspectors appointed to the APS would, like other Commonwealth public servants, have their redundancy entitlements regulated by the applicable industrial award. The agreed position also recorded the superannuation benefits which would be available to inspectors upon redundancy. The benefits depended upon which scheme covered the particular inspector. Again, the summary was descriptive in nature and based on the provisions of the various schemes.

85    The section at pages 47 to 49 of the Blue Book on superannuation benefits was even less prescriptive. The agreed position dealt only with the options which were to be available to transferring inspectors depending on the particular scheme which would provide them with benefits: transferees who were members of a State superannuation scheme had the option of remaining with that scheme or becoming a member of the Commonwealth scheme, while transferees who were not members of a State superannuation scheme could choose to become members of the Commonwealth scheme if they wished. Notably, there was no reference in this section to any entitlement to top up payments and, even more importantly, no reference to an obligation to make such payments falling upon the Commonwealth.

86    Another fundamental element of Mr Perry’s claim is his asserted claim for a top up payment, calculated, in part, by reference to an asserted superannuation entitlement of 3.5 times the total of his contributions under the Victorian State revised superannuation scheme. That superannuation entitlement existed, under the 1958 Act, when Mr Perry transferred to the APS. It was referred to in the Blue Book. It was not, however, available to him under the 1988 Act and was not available, in 2010, when his employment with the Commonwealth ceased. The reference to the 3.5 multiplier, it will be recalled, appeared in the “agreed position” part of the section of the Blue Book dealing with excess staff. The text said no more than that, in the event of voluntary retrenchment, one of three superannuation payment options would apply. If the transferring inspector opted (as Mr Perry did) to remain a member of a Victorian scheme he would, under the then extant arrangements, “receive payment of 3 ½ times total contributions”. Had Mr Perry joined the APS and been retrenched whilst the 1958 Act remained in force he would have been entitled to a lump sum calculated on this basis. The payment would have been made from the Victorian State superannuation fund: any such entitlement would have arisen under the rules then governing that fund. The entitlement would not have arisen under anything contained in the text of the Blue Book.

87    The top up payment, to which Mr Perry claimed an entitlement, was to be the difference between the payment which he was to receive from the Victorian State superannuation fund and the amount which he would have received had he opted for one of the payments available under the equivalent Commonwealth scheme. The Blue Book provided for no such top up. In recording, in the section dealing with excess staff, that it had been agreed to adopt the Commonwealth provisions, the author was referring to the provisions of the RRR Award which had earlier been summarised. Any superannuation entitlements arising from a redundancy were dealt with separately and subsequently and depended upon the particular scheme to which the transferring inspector belonged at the time at which the redundancy occurred. There was no agreement, on the part of the Commonwealth, to pay any more than that which was required under the RRR Award.

88    The suggestion that a top up payment might be made was first mooted in the context of the industrial dispute which arose in relation to the entitlements of the ten inspectors who were made redundant in 1990. It was founded upon a mistaken assumption that the Blue Book provisions contained incorrect information relating to the calculation of amounts payable in such circumstances. The ex gratia payments were subsequently made by the Commonwealth on the basis of the same false assumption and in order to preserve industrial harmony. There was no provision of the Blue Book which constituted a contractual term which bound the Commonwealth to make any such top up payment.

89    Mr Perry has failed to establish any viable claim in contract founded on the Blue Book, the Yellow Book, or his dealings with the Commissioner in 1988.

CONTRACT – A SECOND CONTRACT IN 2010

90    Mr Perry also, belatedly, and in the alternative, sought to rely on what he said was a second contract which was evidenced by the correspondence exchanged between him and departmental officers in 2010 on the eve of his retrenchment.

91    Mr Perry pleaded that he and the Commonwealth had entered into an agreement for the termination of his employment, on or about 15 April 2010. He claimed that the agreement was entirely in writing and was constituted by the letters he received from officers of the Department dated 30 March 2010 and 8 April 2010, the email dated 10 April 2010 and the offer of accelerated separation dated 14 April 2010.

92    He pleaded that the terms of the agreement were, inter alia, that upon separation:

(a)    the applicant would receive a payment of 3½ times total contributions to the Superannuation Fund;

(b)    ‘total contributions’ were ‘total contributions’ within the meaning of the Blue Book; and

(c)    the net payment from the Commonwealth to the applicant would be the difference between:

(i)    the amount calculated in (a) above; and

(ii)    any retirement benefit amount paid to the applicant by the Superannuation Fund.

93    The Commonwealth denied the existence of any agreement and any of the alleged terms. It pleaded that the 30 March 2010 letter had expressly said that it was not a formal offer of accelerated separation and was mistaken in suggesting that Mr Perry had an entitlement to any top up payment. It accepted that the 8 April 2010 letter was mistaken when it advised Mr Perry that the quantum of a top up payment would be $90,252.32. The email of 10 April 2010, it contended, provided no definitive advice and expressly told Mr Perry that the author was researching the basis upon which any top up payment could be justified. The offer of accelerated separation, in the 13 April 2010 letter, made no reference to any top up payment. The covering email to the 13 April 2010 letter (which email was dated 14 April 2010) had advised no more than that the final top up amount would be calculated once figures had been received from Mr Perry’s superannuation fund. Mr Perry had accepted the offer of accelerated separation on 14 April 2010.

94    The various suggestions, which had been made in earlier correspondence in 2010 and which had been renewed in the email dated 14 April 2010, which was sent to Mr Perry with the letter of offer dated 13 April 2010, understandably raised an expectation that he had a right to receive some form of top up payment. Those providing him with advice were mistaken. The suggestion of entitlement to a top up payment was wrong. When, belatedly, the officer responsible for deciding the quantum of Mr Perry’s pay-out finally focussed on the critical question and undertook some research, he was unable to find any legal basis upon which the claimed top up payment could be made. None has been established.

95    Any payment on retrenchment required a statutory authorisation or support from the provisions of an applicable industrial instrument. The early correspondence did not explain the legal basis upon which the mistaken calculation had been based. It could not have been contractual for the reasons given above in respect to the principal claim made by Mr Perry. He points to no statutory or other basis which would have authorised the Commonwealth to make the claimed top up payment to him.

96    The parts of the correspondence, on which Mr Perry relies, in an attempt to establish his alternative contractual claim, do not evidence the entry by him in to contractual relations with the Commonwealth. He had asked questions of the Commonwealth Department with a view to finding out how much he would receive by way of superannuation and retrenchment benefits were he to opt for voluntary accelerated separation leading to retrenchment and were his election to be accepted. The answers to those questions depended upon an accurate application of statutory provisions and clauses of an industrial instrument. He was, initially, given wrong advice. So much was acknowledged by the Department, shortly after his separation from the APS had taken effect. The acknowledgement is to be found in the letter dated 21 April 2010,where he was given the opportunity to withdraw his election and be reinstated. He did not take up this offer. Mr Perry may well have had a complaint of maladministration against departmental officers. The wrong advice, however, did not constitute contractual terms.

97    This claim must be rejected.

THE FAIR WORK ACT CLAIM

98    Mr Perry’s final claim was pleaded in reliance on s 542 of the FW Act. He said that the alleged contractual terms were “safety net contractual entitlements” within the meaning of s 542 of the FW Act. That section provides:

Entitlements under contracts

(1)    For the purposes of this Part, a safety net contractual entitlement of a national system employer or a national system employee, as in force from time to time, also has effect as an entitlement of the employer or employee under this Act.

(2)    The entitlement has effect under this Act subject to any modifications, by a law of the Commonwealth (including this Act or a fair work instrument), a State or a Territory, of the safety net contractual entitlement.

99    The term “safety net contractual entitlement” is defined in s 12 of the FW Act to mean, relevantly:

an entitlement under a contract between an employee and an employer that relates to any of the subject matters described in:

(a)    subsection 61(2) (which deals with the National Employment Standards); or

(b)    …

100    Section 61(1), in turn, provides that the Part of the FW Act in which it appears sets minimum standards which are to apply to the employment of employees and which cannot be displaced. Subsection 61(2) provides for the minimum standards which are to form part of an employee’s entitlements. Once such area is notice of termination and redundancy pay: see s 61(2)(i).

101    It was common ground that s 542 of the FW Act can only be engaged if there exists an underlying contractual entitlement for Mr Perry to receive redundancy pay calculated in one of the manners for which he contended.

102    No such contractual entitlement has been established.

103    This aspect of the claim must, therefore, fail.

DISPOSITION

104    The application must be dismissed with costs.

Associate:

Dated:    18 August 2017