INDUSTRIAL RELATIONS COURT OF AUSTRALIA
INDUSTRIAL LAW - Alleged UNLAWFUL TERMINATION OF EMPLOYMENT - whether TERMINATION AT INITIATIVE OF EMPLOYER - whether VALID REASON - CONSTITUTIONAL QUESTION - REINSTATEMENT.
Industrial Relations Act 1988 (now Workplace Relations Act 1996) - ss 170DC, 170DE, 170EA, 170EE.
Commonwealth Constitution - s 51
Judiciary Act 1903 - s 78A
Public Sector Management Act 1994 (WA) - s 8.
Teachers (Public Sector, Technical and Further Education) Western Australia Interim Award 1995 - cc 7, 8 & 24.
Abbott Etherington v Horton Motors Pty Ltd 1995 63 IR 394
Burn v Australian Airlines Limited(1995) 185 CLR 410
Dadey v Edith Cowan University (1996) 70 IR 295.
Fisher v Edith Cowan University (1996) 70 IR 206, (1997) 72 IR 464
Fisher v Edith Cowan University (1997) 72 IR 464
Johns v Gunn Limited 1995 60 IR 258
Kerr v Jaroma Pty Ltd 1996 70 IR 469
Mohazab v Dick Smith Electronics Pty Ltd 1995 62 IR 200
Nettlefold v Kym Smoker Pty Ltd1996 69 IR 370
Selvachandran v Peteron Plastics Pty Ltd 1995 622 IR 371
Siagian v Sainel 1994 54 IR 185
State of Victoria and Others -v- The Commonwealth (1996) 138 ALR 129
Westen v Union des Assurances de Paris unreported IRCA 660/96 17 December 1996 Madgwick J
Woods v W M Carr Services (Peterborough) Limited [1982] ICR 693
FIONA ELIZABETH GIRVAN-BROWN, JOHN GREEUW, MICHAEL SCOTT, GAYLE WATSON, DENISE MARGARET HYND & RITA HARI -v- MINISTER FOR EDUCATION
WI 2591, 2592 of 1995
WI 1009, 1029, 1030 and 1032 of 1996.
JUDICIAL REGISTRAR: BOON JR
PLACE: PERTH
DATE: 7 NOVEMBER 1997
GENERAL DISTRIBUTION
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 2591, 2592 of 1995
WI 1009, 1029, 1030 and 1032 of 1996
B E T W E E N: FIONA ELIZABETH GIRVAN-BROWN
JOHN GREEUW,
MICHAEL SCOTT,
GAYLE WATSON,
DENISE MARGARET HYND &
RITA HARI
APPLICANTS
A N D: MINISTER FOR EDUCATION
RESPONDENT
JUDICIAL
REGISTRAR: BOON, JR
DATE OF ORDER: 7 NOVEMBER 1997
WHERE MADE: PERTH
THE COURT ORDERS AND DECLARES THAT:
1. In the case of Michael Scott, the application be dismissed.
2. In the case of Fiona Elizabeth Girvan-Brown, John Greeuw, Gayle May Watson, Denise Margaret Hynd and Rita Hari, there has been a breach of the provisions of section 170DE(1) of the Workplace Relations Act 1996.
3. The respondent within 21 days reinstate the applicants Fiona Elizabeth Girvan-Brown, John Greeuw, Gayle May Watson, Denise Margaret Hynd and Rita Hari on terms no less favourable than those on which they were employed immediately before the termination and pay to each of those applicants the remuneration lost as a result of the unlawful terminations of their employment.
4. There be liberty to apply.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
GENERAL DISTRIBUTION
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 2591, 2592 of 1995
WI 1009, 1029, 1030 and 1032 of 1996
B E T W E E N: FIONA ELIZABETH GIRVAN-BROWN
JOHN GREEUW,
MICHAEL SCOTT,
GAYLE WATSON,
DENISE MARGARET HYND
& RITA HARI
- Applicants
AND: MINISTER FOR EDUCATION
- Respondent
JUDICIAL REGISTRAR: BOON, JR
DATE: 7 NOVEMBER 1997
PLACE: PERTH
REASONS FOR JUDGMENT
INTRODUCTION
The applicants have applied pursuant to the provisions of the Workplace Relations Act 1996 (C'th) (formerly the Industrial Relations Act 1988) ("the Act"), seeking relief arising out of the alleged unlawful termination of their employment by the respondent. With the exception of Mr Scott, each of the applicants is seeking reinstatement and compensation. Mr Scott is seeking payment of compensation only. The matters were heard together for convenience as they arose out of similar sets of circumstances.
These matters have had an unfortunate history including the passage of time since the applications were filed in January of 1996. The matters initially came for hearing before me on 21, 22 and 23 May 1996. It was not possible to complete the hearing of the evidence by 23 May 1996 and the matters were adjourned for further hearing on 1, 2, 3, 4, 5 and 8 July 1996. The matters were then adjourned for the filing of submissions in writing. Lengthy submissions were filed on behalf of the applicants and the respondent in this matter: in fact, the written submissions at that stage came to a total of over several hundred pages. Further submissions were then made verbally before me. By the time the Court was ready to consider this matter, his Honour Madgwick J had handed down his decisions in the matters of Fisher v Edith Cowan University(1996) 70 IR 206 and Dadey v Edith Cowan University(1996) 70 IR 295. The respondent in the matter of Fisher appealed to the Full Court of this Court. There was a directions hearing before the District Registrar at which the parties agreed that it was desirable to wait until the decision of the Full Court was handed down in that matter. The Full Court handed down its decision in Fisher v Edith Cowan University (1997) 72 IR 464 on 2 April 1997. Each party then filed further submissions in relation to the effect of the decision in Fisher on these applications. There were several further directions hearings.
In reply to the further submissions on behalf of the applicants, the respondent submitted that the construction or application of the Act as contended for by the applicants constituted an infringement of the implied limitation on the Commonwealth’s legislative powers under section 51 of the Commonwealth Constitution, being that the Commonwealth cannot exercise legislative powers which interfere with or curtail the government functions of the State or with its capacity to function as a government. Notices were sent to the Attorney Generals for each State pursuant to section 78A of the Judiciary Act 1903. The Attorneys General for the States of Victoria, Queensland and Western Australia intervened in these proceedings and provided submissions. The unfortunate effects of all of this include not only the fact that there has been a considerable passage of time since the applications were filed, but also that this Court is now in possession of many hundreds of pages of documents (including submissions) in what was intended by Parliament to be a quick and efficient method for applicants to seek redress against employers whom they allege have breached the unlawful termination provisions of the Act.
What has been said above is not intended to be a criticism of any party or their counsel. It has simply become impossible to deal with each of the submissions made on behalf of the parties in full in these Reasons for Judgment.
BACKGROUND
The respondent contends that there was no termination at the initiative of the respondent in any of the cases and says that therefore this Court has no jurisdiction to entertain the applications. The applicants say that there was a termination at the initiative of the respondent.
The applicants say further that the provisions of the Actwere breached in a number of ways. In the first place, it is said that there was no valid reason for the termination of any of the applicants as required by the provisions of section 170DE(1) of the Act. Further, the applicants say that their terminations were, in any event, harsh, unjust or unreasonable within the meaning of those words in section 170DE(2) of the Act. Since the applications were filed, the High Court has handed down its decision in the case of State of Victoria and Others -v- The Commonwealth(1996) 138 ALR 129 at 173, which declared subsection (2) of section 170DE to be invalid and this Court will therefore not deal with any of the submissions made in relation to that sub-section. The applicants further say that the respondent breached the provisions of section 170DC of the Act in that none of the applicants was given an opportunity to respond to any allegations against their conduct or performance before their employment was terminated.
The respondent says that the provisions of section 170DC do not apply as there were never any allegations against the conduct or performance of any of the applicants. Further, the respondent says that if this Court finds that there were terminations at the initiative of the employer, there was a valid reason for the terminations. The respondent also says that if this Court finds that there was a breach of any of the provisions of the Act, this Court should find that reinstatement of any of the applicants is impracticable in the circumstances, and the appropriate remedy should be an order for compensation. Finally, the respondent has raised the constitutional issue already referred to.
Each of the applicants was, prior to December 1995, employed by the respondent as a TAFE lecturer. With the exception of Mr Scott, each of the applicants was employed for successive periods as a "temporary" lecturer for the respondent. Towards the end of 1994, the respondent decided, for reasons which will be dealt with further below, that the positions of all temporary TAFE lecturers should be advertised. Each of the applicants was successful in December 1994 in obtaining a position with the respondent. Each of the applicants was offered a choice between a workplace agreement which would ensure employment for a period of three years, and a one-year "contract" under Award conditions which would ensure employment for a period of one year. Each of the applicants declined to sign a workplace agreement and chose to be employed under the provisions of the Award.
In December 1995, the respondent once again advertised the “temporary” lecturer positions which were not occupied by people who had signed workplace agreements. Each of the applicants applied for a position. Each of the applicants was unsuccessful in December 1995 in obtaining a further position as a TAFE lecturer.
It is the action of the respondent in deciding to advertise the positions and to appoint people other than the applicants to those positions which the applicants say constitutes a termination at the initiative of the employer.
The respondent stresses that it has never had any dissatisfaction with the conduct or performance of the applicants. Rather, the respondent says that the applicants went through a merit selection process and the positions were filled by people who were able to demonstrate greater merit in the selection process than the applicants.
THE EVIDENCE
Fiona Elizabeth Girvan-Brown
Ms Girvan-Brown gave evidence that between 1990 and 1995, she was a lecturer at the Central Metropolitan campus of TAFE which is now known as the WA School of Art and Design. She taught a range of subjects which remained fairly constant over that period. Those subjects included Photography, Basic Photography, Fine Art Photography, Interdisciplinary Studies, Visual Literacy and Art History Theory.
Prior to working at TAFE, Ms Girvan-Brown worked as a freelance photographer and photo-journalist. From 1976 until the present, she has continued to exhibit photographic artwork in a variety of venues. In 1989 and 1990, Ms Girvan-Brown was Photographer at the Fremantle Herald Newspaper.
During 1989, she was asked by a lecturer at the WA School of Art and Design to teach a class called Photo Documentary 235, a 4-hour photo-journalism class. Ms Girvan-Brown accepted that offer and that was her first introduction to TAFE teaching. Her evidence was that she initially taught the unit for one semester and after that she found she was having classes added to her timetable. Ms Girvan-Brown's evidence was that by the second semester in 1991, she had an increased workload and in 1992, she was appointed on a “fractional” basis.
Ms Girvan-Brown was sent a letter dated 1 May 1991 by the Executive Director of the Department of TAFE headed “Temporary Appointment - Department of TAFE” which stated that Ms Girvan-Brown was being offered the position on several conditions, including “salary will not commence until you have actually taken up duty” and “This temporary appointment will cease on 20 December 1991 or such earlier date as may be determined by the giving of one-week’s notice on either side”. Ms Girvan-Brown also received a letter from the Minister for Education dated 1 May 1991 stating that Ms Girvan-Brown was to commence her duties on 25 March 1991, her salary was to be paid from 25 March 1991 and her appointment was tenable to 20 December 1991 or such earlier date as may be determined by the giving of one-week’s notice. Ms Girvan-Brown's evidence was that these documents referred to her commencing duty on 25 March 1991 and ceasing on 20 December 1991. In fact, she had started work in the 1991 year in early February and had been paid since that time. When she received these documents, she had already been teaching for several months in that year. She had also, of course, been teaching in the previous year.
Ms Girvan-Brown said that sometimes she received letters of appointment and sometimes she did not. She said that sometimes they arrived in her pigeon-hole at work and sometimes at her home. Her evidence was that she knew she was already teaching so she took these letters as confirmation that her status had changed from “casual”, which it had been in 1990, and was now graded as “fractional temporary”, which meant that she would continue to be paid during the mid-term and Christmas holiday breaks. She was also entitled to sick leave. Ms Girvan-Brown's evidence is:
“What it meant was that we were under award conditions, once we received a fractional appointment, rather than as a casual who just came and left.”
Ms Girvan-Brown's evidence was that there was no standard letter of appointment over the period of her employment. She said there was a year when she received no letter at all, and that the letters changed in format. Also, the employer's name changed from the Ministry of Education to TAFE to DEVET and to WADOT, depending on when the period of the documentation was.
Ms Girvan-Brown said that when she was given a “temporary” appointment, it gave her a feeling of job security. She had already decided that she wanted to be a full-time teacher. She had at that stage made enquiries at the Ministry of Education about the requirements for permanency and had been told that she needed a Graduate Diploma in Education, preferably from Curtin University. Ms Girvan-Brown pre-enrolled in 1991 for the Curtin University course, with the assumption that she was going to continue teaching. She said that the “temporary” appointment meant to her that she was now a member of the staff rather than a casual person just coming in to teach. Ms Girvan-Brown completed the Graduate Diploma in Education in 1993 and was the only student who graduated with a distinction from that course. By the time she had completed the course, however, the Department's rules relating to the appointment of permanent staff had changed, and Ms Girvan-Brown was unable to gain an appointment as a permanent lecturer.
Ms Girvan-Brown was sent a letter dated 20 November 1991 from the Assistant Director of TAFE Human Resources Management in the Ministry of Education. The letter is in the following terms:
“Thank you for the service you have given this year. Your present appointment is due to expire on December 20, 1991.
Since pro rata holiday pay entitlements apply to your period of service during the year, you will continue to receive salary until January 17, 1992.
Your re-appointment is dependent upon divisional staffing needs for 1992 which have not yet been finalised.
You will be advised later in the year as to whether you will be re-employed on a fixed-term appointment in 1992.”
Ms Girvan-Brown said that when she received this letter, she was anxious because she had already enrolled at Curtin University with the intention of gaining the qualifications for permanent employment with the Ministry, and she was confused because she had actually already received her timetable for 1992 which set out her teaching commitments at TAFE for that year.
She spoke to several senior members of staff and was reassured because she had received her timetable. It was indicated to her by them that it was just a formality and “just paperwork”. At that time, it was understood by everyone in the TAFE system that “temporary” lecturers would be “rolled over” from year to year. Ms Girvan-Brown received another letter dated 5 December 1991 from the Director of the Central Metropolitan College of TAFE in the following terms:
“Continuation of Temporary Appointment
I understand that Central Office has sent notices of termination to temporary lecturers whose period of employment expires at the end of this year.
You may already have received one of these notices.
Owing to careful management of resources during the year, together with detailed forward planning, this college will be able to retain many temporary staff.
I am pleased to inform you that we propose to re-employ you for 1992...”
Ms Girvan-Brown's evidence was that after she rang the Human Resources Department and indicated her desire to accept the “offer”, she would have come in during the Christmas holidays to continue to prepare for the academic year in 1992. Ms Girvan-Brown received a further letter dated 21 January 1992 from the Minister for Education in similar terms to the letter from the Minister for Education dated 1 May 1991, already referred to.
Ms Girvan-Brown was sent a further letter dated 6 December 1993 from the Executive Director of the Western Australian Department of Training (WADOT) stating that she had been re-appointed as a contract lecturer by the Department under the provisions of the Education Act and Regulations for the 1994 academic year. The letter stated that the period of contract employment was 3 February 1994 to 21 December 1994, although her appointment could be terminated by either party by the giving of one-week’s notice. The letter said:
“Should you wish to accept this appointment on the conditions outlined above, please sign the attached duplicate and return to the personnel officer whose name appears below.”
A section in that letter saying, "Fraction : TAB" meant that her status, whether full-time or fractional, was to be announced. Ms Girvan-Brown's evidence was that in fact she ignored that part of the letter because she already had her timetable for the following year with a full-time load. She did not receive any documentation after that letter stating what her fractional status was to be.
Ms Girvan-Brown's evidence was that throughout the period of her employment, once she was made a “temporary” lecturer she received her pay fortnightly into her bank account. She was paid throughout the holiday breaks, and her salary went up by a level in late March every year.
Ms Girvan-Brown's evidence was that she increased the number of units she taught during the course of her time at TAFE. She became more and more involved in the Fine Art area until in 1993 she was organising exhibitions for the Fine Art photography students on behalf of the college and she was the only teacher in Fine Art who was teaching a photography stream. She set up a procedure whereby students were encouraged to enter international tertiary photographic awards with work that they had already submitted during the semester. Many of her students won awards.
Ms Girvan-Brown was also Coordinator of Photography at TAFE and was responsible for bringing in industry staff to teach specialised studio units. She was involved in their timetabling and in inducting them into the TAFE system. Ms Girvan-Brown was appointed Acting Senior Lecturer of Media Studies for the second semester in 1994, when the incumbent senior lecturer was on long service leave.
Ms Girvan-Brown was also given various administrative duties. Her evidence was that as she had many administrative tasks to complete, she was unable to finish them all in the "duties other than teaching time" made available to her. She was unable to complete tasks such as entering student work for the Ilford National Photographic Awards. She would come into work in January and do that work when there were no students around. She had a desk in the staff room upstairs and shared an office with the technician of photography in the basement. There she had two filing cabinets, a desk and a bookcase and kept a lot of her own equipment. She had free access to either area during the holiday periods. She was given a set of restricted keys and held a key to the technician's dark room. She used these keys during the holiday periods.
Ms Girvan-Brown said that during 1994 there was a change in the industrial relations climate, and towards the end of 1994 there were discussions amongst the staff and in the State Schoolteachers Union meetings to the effect that workplace agreements might be introduced and that the “temporary” lecturers might have to compete for their “own” jobs. Her evidence was that there was a general sense of fear amongst the temporary staff.
She received a letter dated 2 November 1994 from Brian Paterson, the Managing Director of Central Metropolitan College of TAFE. That letter reads as follows
“I wish to advise that your employment will cease in accordance with your contract at the end of the 1994 academic year.
Subject to need, the college will be advertising all its contract lecturing positions shortly. This is in line with the provisions under the new Public Sector Management Act 1994 that all staff must be selected on the basis of merit. This implies a competitive selection process. However, in recognition that many lecturers have already been competitively selected, an offer of employment on the basis of a three-year contract with a workplace agreement will be made available . . . .
It is necessary for you to indicate your decision in writing prior to close of business on November 8, 1994. All positions that are not filled in this manner will be advertised on November 12, 1994, along with other positions that are still required and for which no person have (sic) been previously competitively selected. These positions will be subject to a 12-month contract pursuant to the TAFE award or a workplace agreement expiring on December 31, 1997.
Should you not have been competitively selected on commencing employment, you may wish to apply for one of the advertised positions . . ..”
Ms Girvan-Brown received a draft workplace agreement with that letter. Her evidence was that she thinks she panicked when she received that letter. There was a lot of discussion among staff members. The union became involved and took action in the Industrial Relations Commission before Commissioner Frawley, who had ordered that all parties maintain the status quo for the time being. The union advised the “temporary” lecturers to continue as they had before under the Award. Ms Girvan-Brown did not sign the workplace agreement when she received it and she indicated that she wished to retain her position under the Award conditions.
Ms Girvan-Brown said that she had never been through any form of competitive selection during her work at the college up until then, and her understanding was that she would now have to go through the merit selection procedure. The positions of “temporary” lecturers were advertised in the newspaper towards the end of 1994. Ms Girvan-Brown applied for a position. She went through an interview procedure and was successful in obtaining a position as Lecturer in "Photography Fine Art". She was verbally advised that she had been selected for the position in December 1994 but did not receive any written confirmation until early 1995. The letter she received stated that she had been appointed as a lecturer, Photography/Fine Art. It said that the appointment could be either as a one-year contract under the conditions of the Award or under a workplace agreement for up to three years. The letter enclosed a contract under Award conditions.
Ms Girvan-Brown was also sent another letter from the Human Resources Bureau of WADOT dated 24 January 1995 headed “CONTRACT APPOINTMENT - WA DEPARTMENT OF TRAINING” which said that Ms Girvan-Brown was being offered the opportunity for a contract of employment under the Award. It went on to state:
“The reason for this contract appointment is to provide lecturing support in the Photography/Fine Art area. However, as a contract employee you should be aware that unexpected circumstances can arise from time to time which may require the contract to either be terminated or varied during the period of appointment.”
The letter said that the period of employment was from 2 February 1995 to 20 December 1995 and asked Ms Girvan-Brown to accept the offer by signing the attached copy of the letter.
Ms Girvan-Brown gave evidence that she did not pursue the option of negotiating a workplace agreement and she notified her employers of her decision to take the Award option. Ms Girvan-Brown said that she signed the contract under Award conditions, as the letter told her that she should sign it and return it. Ms Girvan-Brown gave evidence that after going through the interview process, she felt that as she had been through the selection process and merit-selected for her position, she was confident that her employment would be on-going as it had been and she would be timetabled from one semester to another.
During 1995, Ms Girvan-Brown was appointed as Coordinator of Fine Art which she saw as a recognition of the senior staffing work that she had done previously. There was no difference in her teaching work except that when she was given acting higher duties, she would be given a number of hours off from her teaching load.
Ms Girvan-Brown said that at a general staff meeting in early 1995, Mr Bela Kotai, the Director of WA School of Art and Design, said that the job interviews would occur again "over his dead body". Ms Girvan-Brown said that she felt reassured that the disruption was not going to occur again.
Ms Girvan-Brown said that in the latter part of 1995, however, she was told informally through staff discussions that the “temporary” lecturers would have to go through the whole process of merit selection again. She said that the “temporary” lecturers understood it to be further pressure for lecturers to sign workplace agreements rather than take award conditions.
In October 1995, advertisements for lecturing positions at WADOT again appeared in the newspaper. Ms Girvan-Brown gave evidence that the position she was filling did not appear to be contained in the advertisement at all. There was one position designated Photo Design L24/95, which was not the same as the position she was occupying. The advertisement contained seven positions as Lecturer in Fine Art at Central Metropolitan College of TAFE. Ms Girvan-Brown gave evidence that she was concerned that her position had not been advertised and went to see Mr Kotai. She asked Mr Kotai, "Where is my position, Art Photography, Fine Art?"
According to Ms Girvan-Brown, Mr Kotai replied that they were in the process of change and he believed that some mistakes had been made. He told her that Judith Forest and Con Emmanuelle, the new acting program managers, were perhaps not aware of the range of lecturers that came underneath his brief. Ms Girvan-Brown said that she asked, "What can I do about it?" and Mr Kotai's words to her were, "I'm the boss. I can fix it." She asked Mr Kotai to elaborate and he said, "All I have to do is to put ‘times-two’, as Photography for Mt Lawley was times-three and Jewellery was times-two next to it, and that would mean there were two positions." Mr Kotai reassured her that if the timetable existed, the job would still exist and said that he would have to speak to the acting head of Fine Art, Judith Forest, to clarify this position.
As a result of this, Ms Girvan-Brown made repeated enquiries to Mr Kotai and to Margot Anderson, who was the acting senior lecturer in Design. Ms Girvan-Brown said that she just wanted to re-apply for her “own” job if she had to go through that whole process again, and she was having trouble locating it. She said that she received no assistance from either Judith Forest, Bela Kotai or Margot Anderson to locate where her job was. Ms Girvan-Brown said that she approached Judith Forest and asked her if there was any possibility that she would not have a position in Fine Art next year as it was becoming obvious to her that she was going to have a problem locating her job since she had been informed that the Photo Design position came under Con Emmanuelle's Multi-Media and Graphic Design brief and had nothing to do with Fine Art students.
Ms Girvan-Brown had applied for the Photo Design position as that was the only one which appeared to be at all related to what she was already teaching. Ms Girvan-Brown said that by the time she realised she should have applied for one of the seven Fine Art positions, the closing date for applications had already passed. Ms Girvan-Brown said that right up until the interviewing process, she understood that the advertisement was a mistake which could be rectified by the timetabling. She had gained this impression from Mr Kotai. She knew what the timetabling of her units was for 1996 because she had already enrolled the students in the units that she formerly taught. She was confused because there was only one position that she could locate that related to photography when in fact two positions relating to photography were being billed by lecturers during 1995.
Ms Girvan-Brown was granted an interview in relation to the Photo Design position but was unsuccessful in obtaining that position. She said that she found out in 1996 that she should have applied for one of the Fine Art positions, but in 1995 she could not find out this information from anyone that she asked.
Ms Girvan-Brown said that she had to complete her duties by 20 December 1995. Her pay continued in the normal way until the end of January 1996.
During cross-examination, Ms Girvan-Brown agreed that before merit selection was introduced, she could not be 100 per cent sure about whether she would be re-employed in the following year. She said, however, that she was sure enough because each year before she went on holidays, she would have her timetable for the following year. Ms Girvan-Brown said that she understood that whether or not she was to be employed from one year to the next might depend upon the enrolments for the courses in which she had an interest, and that if there was a decrease in enrolments from one year to the next, it could mean that her course would no longer be taught. She said, however, that it was never actually an issue because student numbers were growing.
Ms Girvan-Brown said that she did not take the letters of appointment very seriously because they varied from one year to another and the conditions were not necessarily as laid down in the letters.
In cross-examination, Ms Girvan-Brown said in relation to the letter headed "Contract Appointment" relating to her employment during 1994, that although the letter referred to "contract", she did not understand that this meant that there was to be any change in her employment conditions because the language had changed. At that time, “contracts” were not part of the vocabulary of TAFE. The words "contract employment" did not concern her as at that time the question of workplace agreements had not been raised.
During cross-examination, Ms Girvan-Brown agreed that she applied to become a permanent lecturer in part because it meant that she would have security of employment. When asked whether a “permanent” lecturer was different from being a “temporary” lecturer in that for a “permanent” lecturer there is more security, Ms Girvan-Brown said that what was different about it was that “permanent” lecturers “could not be got rid of if they weren't any good”.
Ms Girvan-Brown gave evidence that she was devastated by the loss of her job. It affected her health to the extent that she had to go on sickness benefits. She had made a decision to do lecturing as a career and that had been taken away from her.
David Scott Balfour
The Court heard from David Balfour, the Chief Organiser of the State Schoolteachers' Union and the Australian Education Union. Mr Balfour gave evidence that “temporary” lecturers had been an on-going problem for the union. The union's view was that there should be very few “temporary” lecturers whereas between a quarter and one third of its membership was classed as “temporary”.
Mr Balfour's evidence was that for some time before 1992, there was a protocol between the union and the Department of Training that any “temporary” lecturer who had performed adequately in his or her position as a “temporary” would continue in the position if the job was on-going. They would simply be rolled over from year to year. Mr Balfour's evidence was that there were “temporary” lecturers in the TAFE system who had been temporary for 20-odd years and very many who had been “temporary” for over 10 years.
Mr Balfour said that in 1992, Ian Hill became Director of Training in the TAFE system. Mr Hill indicated to the union that he wished to change the use of the word "temporary" to the word "contract" lecturer. Mr Balfour gave evidence that through the second half of 1993, it was the union's understanding that the “temporary” lecturers were being offered a choice of accepting a workplace agreement and not having to undergo merit selection, or accepting award conditions and having to go through the merit selection process. The union received many complaints from “temporary” lecturers about what they considered was pressure from the management of the Department of Training, urging the “temporary” lecturers to sign their intention to become involved in the workplace agreements.
Mr Balfour said that it was the union's point of view that the workplace agreements offered severely reduced working conditions in exchange for higher pay. The kind of reduction in working conditions contained in the workplace agreements were an extension of the working week from 30 hours to 37½ hours in the number of duty hours that a lecturer was required to be on the campus, and a reduction in annual leave from about 12 weeks to about six weeks. Because of these reduced working conditions, many “temporary” lecturers were not prepared to sign the workplace agreements.
The union became involved in discussions with the Department about its intention to introduce merit selection and workplace agreements. One of the reasons given by the Department for instituting the merit selection process was that the Department had no idea of who amongst the “temporary” lecturers had originally been merit selected, and they wanted to be sure that all of the “temporary” lecturers in the system had undergone a proper selection process.
The union's view was that the Department was intent on having people under workplace agreements and if they could get people to sign workplace agreements, the Department did not care whether they had been merit selected or not. The union had tried to convince the Department to delay the merit selection process for one year to give “temporary” lecturers some chance to prepare for it but the Department went ahead with the advertisements in late 1994 in any event. During 1995, the union argued that the “temporary” lecturers, once having been merit selected, should not have to go through a merit selection process each year. The Department, however, maintained its stance.
In 1994, the union took action in the Australian Industrial Relations Commission to try to stop the advertisements. The action was not successful. The issue remains alive amongst “temporary” lecturers who are concerned about their future.
Mr Balfour was shown the letter to which I have already referred dated 2 November 1992 by Brian Paterson to Ms Girvan-Brown. In cross-examination, Mr Balfour agreed that the letter of 8 November 1994 asked the lecturers whether they wanted a workplace agreement rather than asking them to actually enter into workplace agreements. Mr Balfour conceded that the second-last paragraph indicated that those people who had not been competitively selected would have to apply for an advertised position. Mr Balfour said that in late 1994, it was the view of the union and the view of its members that if the lecturers accepted a workplace agreement, there would be no merit selection and if they did not take a workplace agreement, there would be merit selection.
John Rutherford Greeuw
Mr Greeuw started lecturing at TAFE in 1990. He has a Bachelor of Arts in Fine Arts and did one and a half years at teachers' training college. He is a practising artist in the areas of painting, sculpture and drawing. He has had a number of exhibitions.
Mr Greeuw gave evidence that in 1990 he walked in off the street and took his folio into TAFE. He was interviewed and given a job immediately. The head of the Central Metropolitan College of Art at TAFE and a senior lecturer looked through his folio and asked him some questions. These interviewers were ready to employ him after they saw his drawings. As he left that interview, he was asked to act as a relief lecturer immediately as a lecturer was sick. According to Mr Greeuw, the work “just seemed to keep piling in, after that”.
Initially, Mr Greeuw was a casual employee acting as relief lecturer as required. In early 1991, Mr Greeuw held an exhibition which received very good reviews. After that, TAFE employed him on a much more regular basis and he received a “temporary” part-time appointment. This changed the way in which he was working. He was given a desk, a space, access to the storerooms and a set of keys. He had to come in out of hours and sometimes during holidays. He became a member of the staff which involved a lot more work. Mr Greeuw was predominantly employed as a drawing lecturer, although he also taught Foundation Studies and Fine Art Painting.
Mr Greeuw's evidence was that from 1993 onwards, he virtually became a full-time employee. He was paid during the holidays. Mr Greeuw's evidence was that the letters of appointment he received were not always consistent with what actually happened in practice. For example, he received a letter of appointment in December 1993 stating that the fraction of his appointment was to be announced. However, Mr Greeuw already knew at the time that he would have a full-time load in the following year because that was what the timetable said.
Mr Greeuw's evidence was that he was told by a number of senior lecturers that he could expect re-employment as long as he never did anything drastically wrong. He said that that was common knowledge. Mr Greeuw said that, "so long as you were placed in the timetable, you were right; your job just continued on". This is consistent with Mr Balfour's evidence of the practice until 1993. Mr Greeuw said that he continually received very positive feedback from his superiors, from the other lecturers and from the students. He became involved in inducting new lecturers.
Mr Greeuw said that in the second half of 1994, a certain amount of rumour had started. There was industrial unrest and nobody was quite sure what was going to happen. Mr Greeuw received a letter from Brian Paterson dated 2 November 1994 in identical form to the letter received by Ms Girvan-Brown. By the time he received this letter, Mr Greeuw was aware of the merit selection procedure coming up. His evidence was that he didn't worry too much about it because of the reassurance he was getting from senior management at the time.
Mr Greeuw said that he was not really interested in accepting a workplace agreement, although the temptation was there "because you could avoid the interview. You sign up for three years, you wouldn't have to go for an interview." When asked what made him think that, Mr Greeuw said that senior management told the “temporary” lecturers that. In particular, Mr Greeuw thought that Bela Kotai had mentioned something along those lines.
At one stage, Mr Greeuw was tempted by the workplace agreement because he understood that he could go with a personal proposal whereby, for example, he could get a three-month block of time away from teaching which would enable him to practise his art. However, Mr Greeuw said that eventually it appeared that there would be no individual agreements, just one agreement with set conditions for everyone, which did not suit him at all.
Mr Greeuw applied for a position as lecturer in late 1994 and was successful in obtaining the position. He received letters headed "Lecturing Appointment" and "Contract Appointment" in very similar terms to those received by Ms Girvan-Brown. Mr Greeuw signed the contract as requested. His evidence was that he understood that by signing and returning the document, he was continuing his employment on the same conditions he had had before. During 1995, Mr Greeuw's work did not change as a result of the merit selection procedure and the signing of the contract.
Mr Greeuw's evidence was that he was not too worried about receiving a one-year contract because he thought he would be all right as he had been merit selected. After going through the procedure, he actually felt even more secure than before. He was very surprised at the end of 1995 to find that there was to be a further round of interviews. He had been aware to some extent that it was a possibility but he hoped that it would not happen. He was on holiday and saw the jobs being advertised in the paper. Mr Greeuw applied for a position as Fine Arts Lecturer and attended an interview. He was unsuccessful in his application. He also applied for a fractional position in Fine Arts and for the Prison Art Program Lecturer position. He was also unsuccessful in his applications for those positions.
During cross-examination, Mr Greeuw agreed that it was not guaranteed that he would automatically get a job in the following year. He accepted that it was conditional upon the number of enrolments, but he stated that by the end of the previous year he knew the number of students enrolling for the following year. He said that the question of student enrolments was irrelevant because the college always had many students apply.
In relation to the letters of appointment, Mr Greeuw said that they were formal statements that his employment would cease, for example, on 31 December 1992, but it was never understood like that. He went to his senior lecturers and asked about his future. He was advised that there was no way his employment would cease like that. He was told he would have to do something terribly wrong to lose his job.
In relation to the question of payment during the Christmas holiday period, Mr Greeuw said that once he became a “temporary” lecturer, he received his pay all the way through the Christmas period without a break. Mr Greeuw said that he only understood for sure when his employment ceased that the payments were classified as "holiday pay". Mr Greeuw said that he was involved with students and lecturers over the holiday periods. It was expected of him that he would work overtime. Mr Greeuw said that "you are expected to act as a professional".
Mr Greeuw gave evidence that it was difficult for him to draw a line, distinguishing between his practice as an artist and his employment as a TAFE lecturer. This was because his work as an artist supported his teaching at TAFE. The pay he received as a lecturer and the periods during which he had no formal class contact enabled him to work on his exhibitions.
In relation to the contracts, Mr Greeuw said they were treated just as formal documents. He signed them because he had no choice. He said that because of the way in which he received the formal contract after he had actually started teaching each year, it made the contract of lesser value as a document. At the end of 1994, he had hoped to be offered a three-year contract under the Award so that he would not have to go for an interview at the end of 1995. In any event, he was hoping that he would not have to undergo a further interview at the end of 1995 and it was quite a shock to him that he did have to.
During cross-examination, Mr Greeuw said that towards the end of 1995, Brian Paterson told a group of lecturers that they had no reason to fear the further merit selection process. Mr Paterson said that if they had been working well enough in their places, they would get through the interviews.
Gayle May Watson
Ms Watson is a registered nurse with a hospital-based diploma certificate. She also has a Bachelor of Nursing degree with Honours and has commenced a Masters degree. For several years before her employment at TAFE, Ms Watson worked as a nurse.
Ms Watson commenced employment as a lecturer in Nursing with the West Australian School of Nursing in 1987. At that time, the West Australian School of Nursing was responsible for hospital-based diploma courses for the teaching of registered nurses and enrolled students. In 1989, Ms Watson started work for TAFE. She responded to an advertisement in the "West Australian", advertising for clinical lecturers with the Department of Enrolled Nursing at TAFE. She attended a formal interview and was appointed on a part-time basis as a clinical lecturer within the Department of Enrolled Nursing in July of 1989. Ms Watson described her chosen career path as being within nursing education. Her position at TAFE was one of the very few opportunities available to her at that time.
Ms Watson's evidence was that when she went through the appointment process, it was clearly explained to her by her employers that the word "temporary" would appear on some of the documents that she would receive, but that her position was to be an ongoing position and that she would be continuing to work from year to year. Therefore, although the word "temporary" would be used in the documents, her employment was like that of a permanent member of staff and was to continue for as long as she wanted to be there. Ms Watson said that Mr Booker, the head of the Department, raised the issue with her to allay any fears she may develop in reading documents she would receive. This occurred during the interview process. This position is consistent with the position outlined by Mr Balfour in his evidence as to the practice at TAFE prior to the end of 1994.
Ms Watson's evidence was that usually at the end of each year, she would receive a document telling her that her employment was to continue in the following year. However, there were years when she would go on holiday and the documents would not arrive until January. There was a time when no such document arrived and her work continued in any event.
Ms Watson gave evidence that at the end of 1989 when she had completed her first semester of work, she made inquiries about her employment and was advised by Mr Booker, the head of Department, that her employment would continue even though she had not received a document to certify the fact that she was to return in February 1990. She was to continue teaching unless she formally resigned. At the end of 1989 she was given her timetable for 1990. Ms Watson's evidence was that it meant to her that if necessary, she needed to spend some time doing preparation over the holidays to be ready to begin teaching in 1990.
In the first semester of 1990, Ms Watson's teaching load was increased to a full-time level. The documents she received still continued to state that she was classified as a “temporary” lecturer.
Ms Watson's evidence was that over time her duties at the School of Nursing changed somewhat. She was a lecturer and clinical instructor of nurses. She also began to assist in marking assignments and tests which came from all classroom areas and exams. She was involved as a member of staff in discussing the development of the program, appropriate clinical areas, and assessing the program development within the curriculum. She became much more actively involved in this area of assessing and giving contribution to development within the program.
Ms Watson's evidence was that in about the last week of each semester, she would be given her timetable for her teaching commitments for the following semester. The time to prepare for those classes often used up some part of the holiday time.
Ms Watson said that her understanding about her work with the Department of Enrolled Nursing was that it would continue.
Ms Watson's evidence was that the first time she was made aware by somebody in authority from TAFE that there may be something different about 1995 was when Kate Reading arrived in the department with a big stack of yellow envelopes that were all personally addressed, and stated that she wanted to meet with Ms Watson and anybody else who was there at the time. Ms Watson was handed an envelope by Ms Reading and found it contained a workplace agreement. In her brief discussion with Ms Watson, Ms Reading said that this was “something wonderful”. Ms Watson's evidence was that her reading of the document indicated that it did not appear to be quite so wonderful. Ms Watson said she went home, read the document again, and became stressed and angry because her workplace conditions had suddenly changed without her knowing that they were going to be changed in any way. Ms Watson joined the union at this time to gain protection for herself against what was happening. She said that she understood that if she did not sign a workplace agreement, she could be out of a job that she had held for many years. She was aware that the union represented all members of staff and were trying to resolve the situation. The next notification she received was that all positions would be advertised across TAFE for temporary appointments, and that following that, all staff would hopefully be re-employed on a basis of merit.
Ms Watson's position was advertised in the newspaper at the end of 1994. She applied for the position. She attended an interview and was subsequently notified that she had been successful in her application. Ms Watson said that she was told by Mr Booker that all staff had been re-employed after the round of interviews. Ms Watson received letters headed "Contract Appointment" and "Lecturing Appointment" in similar terms to those received by Ms Girvan-Brown and Mr Greeuw.
Ms Watson went to an appointment with Ms Reading to sign a document which stated that she would continue her employment under the award. Ms Reading once again offered her the workplace agreement but Ms Watson was not prepared to sign that document and chose to be employed under the Award conditions instead. Ms Watson said she did not accept the workplace agreement because of the difference in work hours and the loss of holidays. Ms Watson said that after this meeting, she continued in her employment as she had been doing and believed that she was continuing to work under the Award conditions that she had been employed under for the previous five and a half years. Ms Watson's evidence was that she was very annoyed about having to go through an interview process at the end of 1994 because she had been through a merit selection process in 1989. There had been no performance appraisal within the Department, there had never been any criticism of her performance, and she felt she had to go through an interview process again against the public for a position that she had already been filling and completing to a high standard.
Ms Watson's understanding after the end of 1994 was that her future employment was now a lot more secure because she had proved her merit. She expected to maintain her existing position.
In October 1995, Ms Watson received a letter from Mr Brian Paterson, the Director of the Central Metropolitan College of TAFE, advising that her position would be advertised in the newspaper once more. Ms Watson said that she was angry and frustrated upon receipt of that letter. She felt that she had already proven her ability to maintain her position through merit selection and she again had to compete with the public to show this.
Ms Watson applied for the position at the end of 1995. She was granted an interview but was unsuccessful in her application. Ms Watson said that she was very distressed, not only because she had lost her employment but because she felt that her career had been taken away from her.
During cross-examination, Ms Watson said that Mr Booker would speak to her towards the end of each academic year and advise her that her employment was to continue the following year. It had only come to her attention recently that there had been a change in the terminology in the documents she received from TAFE in that her employment status changed to a "contract" employee. Ms Watson's evidence was as Mr Booker had taken some time to explain to her when she was initially employed, that she would receive various documents setting out the terms of her employment and that it did not mean that her employment would not continue and that it was just the paperwork, and her view was that her employment would continue.
Ms Watson said she was expected to return as a member of staff each year unless she had verbally said she was not returning or had put in a written resignation.
In relation to the letters she received most years from the Department, Ms Watson admitted in cross-examination that she had signed and returned the "acceptance of offer of employment" letters. She said, however, that although the appointments under the letters may have expired each year, her employment continued. Ms Watson said that the letters were just pieces of paper and a formality. She had been told by Mr Booker not to pay much attention to them.
Ms Watson said that towards the end of 1994, she was told by Ms Reading that if she did not sign the workplace agreement, her position would be advertised. Then there was industrial action and the Industrial Relations Commission handed down a decision that all positions would be advertised.
Ms Watson was cross-examined about the merit selection process. It was put to her that it was fair for the respondent to appoint another person whom the selection panel felt was more suitable for the position than Ms Watson herself. Ms Watson disagreed with that proposition. She said that she had been performing her position well for many years. At page 253 of the transcript, Ms Watson said, "It was seen that they had the right at the end of each year to advertise all the jobs publicly and, 'boy, even though we've employed these people who do their job well and are qualified to do it, there just might be somebody else out there who's got better qualifications, so let's get them, instead'." Ms Watson said there was something inherently wrong with that because she would lose her job, even though she had been performing well in that job and was qualified to do it. Ms Watson said that with the merit selection process, it was always possible to find somebody else who might be better qualified than the people who were occupying the positions, but that this was not fair.
Rita Hari
Ms Hari commenced employment at TAFE in March of 1989 in the Department of Enrolled Nursing Education. She answered an advertisement and was interviewed, and then was offered the position. Ms Hari received a letter from TAFE dated 22 February 1989 which referred to a "temporary appointment". Ms Hari said that when she read that, she was worried so she went to see Mr Booker and Ms Bishop. They both told her not to worry, that it was just language that TAFE used and that she would be continuously employed. This is consistent with the evidence of Mr Balfour.
Ms Hari's evidence was that she did not get letters of appointment on a yearly basis. At the end of each year they were told they would be there next year and would be given their timetables. Those letters she did receive came after the academic year had started, although there was one letter which was dated 17 December 1992 which she received in December. Ms Hari's evidence was that she asked Mr Booker and Ms Bishop about this and had been told that she would be continuously “rolled over”.
Ms Hari's evidence was that she would do some preparation during holiday time because she could not fit it all in during the academic year. She had to go in when they were on holidays to proofread documents and to make sure everything was done properly.
Ms Hari had some duties other than teaching. She was responsible for allocating lockers to new students and for making sure that they paid a deposit. She was also involved in setting up the rooms for the years’ semester exams. She had to fill in the concession passes for the students on public transport and had to check the rolls for the number of absent days each student had. She would normally be told about 10 days before the end of semester which clinical placements she had and which units she would be teaching in the classroom.
Ms Hari received her salary on a fortnightly basis, including throughout the 13 weeks of holiday. She said that there might be one or two days before the start of the next academic year when she missed out on being paid because her “contract had not started yet”.
Ms Hari said that in 1994 she was told that restructuring was going to take place in TAFE. She asked Ms Bishop what was going to happen, and was told that some senior positions would be amalgamated. Ms Hari did not think this would affect her greatly.
In the second half of 1994, Ms Hari was giving a lecture when Mr Booker knocked on the door of her room and asked to see her. Her evidence was that Mr Booker told her that Ms Kate Reading would be coming to see her with a workplace agreement. Mr Booker said:
"I am sorry this is happening to you, and it will not stop here . . . . I feel sorry for you. I am not sorry for the rest, because you have given me some very good service. You missed out on permanency by just three weeks and this is happening to you. I will come and get you when Ms Reading arrives."
Ms Hari said that this was the first time she had heard of “a thing called a workplace agreement”. Ms Reading came to her and said, "I have some very good news to tell you. This is your workplace agreement package." Ms Reading asked Ms Hari to read it and then let Mr Booker know her decision.
Ms Hari said that she had applied for permanency. To be a permanent member of staff, she first needed to finish her post-graduate qualifications in education. Ms Hari missed out because she was three weeks short of completing her two-year course when the applications for permanency closed. She has been unable to apply for permanency since then because the offer had never since arisen. The offers for permanency were advertised in each faculty. Ms Hari was interested in applying for permanency because she would get some study time to pursue her Master of Education. Ms Hari also felt that permanency would give her extra benefits such as not having to go through the letters of contract.
Ms Hari took the workplace agreement package home and read it. She understood that in return for an increase in pay, she would be required to increase her hours of work and would have to be available to work Monday to Sunday, any hours, from 8 am to 10 pm. Further, she would have less holidays available to her. She sought advice from an accountant friend who advised her against accepting it. She advised Mr Booker that she was not prepared to sign the workplace agreement. Mr Booker said to her, "I'm glad you made that decision because I don't think people should sign it." He said to her, "Look, don't worry, Rita, you will still have a job." After this, all staff members in the faculty were informed that their jobs would be advertised.
At the end of 1994, Ms Hari applied for her position which had been advertised in the newspaper. She attended an interview and was ultimately successful in her application.
In January 1995, Ms Hari received a phone call from Ms Reading who asked her to come in and see her. Ms Reading asked Ms Hari whether she would like to be employed under the workplace agreement or the TAFE Award. Ms Hari chose not to accept the workplace agreement. She was given a contract to sign. Ms Hari said that she had been through a very stressful interview and felt that if she did not sign the document, she would not have a job.
Ms Hari's evidence was that each year she would be upgraded by one grade and would thus receive more pay each year.
In or around Easter of 1995, Mr Paterson came to talk to the staff and said that as far as he was concerned, he would try to ensure that they would not have to go through merit selection again. Despite this, however, Ms Hari received a letter from Mr Paterson dated 4 October 1995, advising her that her position would once again be advertised. Ms Hari applied for the position she had been occupying, was granted an interview, but was unsuccessful in her application.
During cross-examination, Ms Hari said that after she was first employed, she saw Mr Booker several times in relation to her “temporary” employment status and he always assured her that she would have a job and that her position would be “rolled over”. She said that she was confident to a certain degree that her employment would continue from year to year, although she had a very minor doubt. She would check with Mr Booker at the end of each year about her position in the following year. These conversations were informal and might perhaps have occurred in passing in the corridor. Ms Hari felt that Mr Booker had used the words "continuous employment".
During cross-examination, Ms Hari was asked whether the words in her letters of employment which stated that her appointment "might be determined by the giving of one week's notice on either side" did not cause her concern. She felt that those words meant that if she wished to resign, she would have to give one week's notice. This is because she was relying on what Mr Booker had told her.
During cross-examination, Ms Hari admitted that by October 1995, she was aware that her employment in 1996 was not guaranteed and that she would have to apply on a competitive basis. Ms Hari said that it came as a shock and disappointment to her that she would have to go through the process again.
Denise Margaret Hynd
Ms Hynd was first employed by TAFE as a casual in the first semester of 1990. In July 1990, she started temporary employment in the Department of Enrolled Nursing. In or about July 1990, there was an advertisement in the newspaper, seeking staff for the Department of Enrolled Nursing. Ms Hynd applied, was interviewed, and was ultimately successful in her application. Ms Hynd said that initially she thought that “temporary” and “casual” staff were synonymous, but they were not. A "temporary" was just how the Department classified those who did not qualify for permanency.
Ms Hynd initially received a letter stating that her “temporary” appointment would cease on 20 December 1990. Ms Hynd said that this was how it stood officially but in actual practice, if there was a position going, she would not be unemployed unless she chose to resign or unless the Department closed down. As she understood it, the Department was going to expand, not close, so she was not anxious about being unemployed at the end of December. Ms Hynd said that the question of “temporary” as opposed to permanent status surfaced regularly. Through discussions with other staff members and people such as Mr Booker, she understood that “temporary” employment was only “temporary” in name. The benefit of permanency was to have time off in lieu to do further studies.
Ms Hynd received similar letters of appointment to those already referred to in relation to the other applicants. Although the letters said that her appointment would expire towards the end of each year and that at the end of each semester, it was known within the Department what classes each person was going to teach in the following year. Ms Hynd would receive her pay over each holiday period. At the end of 1992, Ms Hynd arranged to change her status from a fractional appointment to a full-time appointment in 1993.
Ms Hynd said that even though the letter she received in relation to her employment during 1994 referred to a "contract", she would have still have seen herself in the same position and expect to be employed as she had been previously.
During 1994, workplace agreements started to be talked about. There was also a lot of union involvement and disquiet with management changes in TAFE. There was talk about restructuring. Ms Hynd received a draft workplace agreement in the course of 1994. Ms Hynd understood that she had to choose between accepting a workplace agreement or staying with the teachers' Award. Ms Hynd chose not to accept a workplace agreement because she did not consider that the salary increase it offered made up for the loss of conditions she enjoyed under the Award.
Ms Hynd's position was advertised at the end of 1994. She applied, was granted an interview, and was ultimately successful in her application. Ms Hynd received letters headed "Contract Appointment" and "Lecturing Appointment" in similar terms to those already referred to in relation to the other applicants.
Ms Hynd was asked to see Kate Reading in January 1996. She was offered the choice between a workplace agreement for three years or a one-year contract under the Award. Ms Hynd opted for the latter. Ms Hynd felt that the workplace agreement was too loaded in favour of TAFE and that the end result would be that she would be out of pocket. Ms Hynd said that during 1995, the staff at the school were all faced with the same situation and wanted to know whether they were going to have to go for interviews again at the end of the year. A letter dated 4 October 1994 from Brian Paterson to Ms Hynd confirmed her worst fears in that she was advised that the positions would once again be advertised.
Ms Hynd applied for both a part-time and a fractional position. She was granted an interview but was ultimately unsuccessful in her applications.
Ms Hynd agreed during cross-examination that the terms and conditions of her employment were such that her employment could be terminated on one week's notice, but she said that everyone knew what the situation was with regard to staffing levels. Ms Hynd disputed that it was not until the end of the year that any decision-making process was set in train to consider whether she would be employed in the following year. It was her experience that within Enrolled Nursing Department, programs are not wound down within a semester. They take several semesters to change.
In relation to the contract appointment letter which she signed at the end of 1993, Ms Hynd said that she did not realise at that time that her employment with the Department was not guaranteed. She said that when she signed the letter at the end of 1993, there was no talk about workplace agreements and no talk about moving out of the Award, and she understood that the situation would remain the same in that her employment would be “rolled over” each year. Ms Hynd said that she did not appreciate the change in terminology and that the document was in fact a contract. She did not anticipate that at the end of December 1994 she would possibly be out of a job, even though that is what the document said.
Ms Hynd said that she had applied to the Department for permanent status, but her application was rejected because the Department had "moved the goal posts". She had gained the qualifications formerly required by the Department for permanency but by the time she was able to apply, the conditions for permanency had changed. Ms Hynd said that she found the “temporary” and permanency issue an anomaly and an injustice for all of the employees. There were only three people in the Department who had permanency, and yet the others were all rolled over from year to year.
In relation to the workplace agreement, it was put to Ms Hynd in cross-examination that there was no question of coercion to sign the document. Ms Hynd's reply was (at page 441 of the transcript):
"Of course, there was. If I'd just signed it, I would have had three years' work. If I didn't sign it, I had to go for an interview. How can I not see that coercion?"
Ms Hynd said that she had been willing to consider pursuing a workplace agreement which was actually an agreement between herself and her employer. She said that this was not what was offered to her. She was offered a workplace agreement document and she had the choice of signing that document or working under Award conditions. There was no possibility of negotiating the terms and conditions of an agreement. Ms Hynd said there was no agreement in the sense that there was no mutual negotiation. Ms Hynd said she weighed up what was involved and was not prepared to sign the workplace agreement.
Michael Scott
Mr Scott began working at TAFE in late 1992 by filling in for another lecturer who was overseas. He began working as a casual lecturer on an on-going basis at the beginning of the 1993 first semester and continued to work as a casual lecturer over four semesters. Prior to working at TAFE, Mr Scott had a career in television and film in the United States. When he arrived in Western Australia in May 1992, it was suggested to him that he contact a lecturer at TAFE who was teaching in the television and film area. Mr Scott forwarded his resume to that person and subsequently attended a meeting with him. He was asked by that person if Mr Scott would be interested in filling in while he was overseas, and Mr Scott agreed to do so. At the end of that interim period, Mr Scott expressed his desire to return to TAFE in the following year. From 1993 onwards, Mr Scott was not filling in on a substitute basis but was teaching his own courses.
Mr Scott said that at the end of each semester, he expressed his desire to continue working into the next semester. By the end of each semester, he was given a timetable for the following semester. Mr Scott said that when he first arrived in Australia, the terms "casual", "part-time" and "fractional" were all new to him and he did not understand them at first.
From 1993 onwards, Mr Scott understood that one could be employed as a casual lecturer at TAFE if one was teaching in the diploma courses up to a certain number of hours per week. Once that number of hours per week was crossed, the lecturer would become a “fractional temporary” lecturer. Once that happened, the “temporary” lecturer received approximately half of the hourly wage of the “casual” lecturer, but would be paid throughout the holiday periods and would be required to put in hours above and beyond the actual contact hours for duties other than teaching. At one stage, Mr Scott's hours of employment crossed over the line between “casual” and “fractional temporary”, and he was told that he would then have to become “fractional”. Mr Scott argued successfully with his employer that there were exceptions to the rule and that he wanted to remain as a “casual” employee. He stated that he wanted to do this so that he could earn as much money as possible.
Mr Scott said that he first heard through the senior lecturer in 1994 that the lecturing positions would be advertised for contracts in 1995. Mr Scott said that he knew nothing about the process leading up to the advertisement of the positions.
Mr Scott applied for a position as a Lecturer in Film and Television. He was granted an interview and was successful in his application. Mr Scott said that he elected to go through this application process because he was seeking more security from the college. The college was offering a one-year contract and Mr Scott welcomed that. When Mr Scott received the letter of appointment, it said that the salary for his grade was $29,611 per annum. Mr Scott was concerned about that and thought it was a low salary, given his background in education. He expressed some concern about it to the Director of the College, Bela Kotai, and Mr Kotai said that Mr Scott could earn more by signing a workplace agreement, in which case he would receive $35,000 per annum. Mr Scott said that he then started inquiring about what workplace agreements were about. He found that in order to get more money, he would have to exchange some of the working conditions. He felt that he would come away with less money in the end on the workplace agreement, so he decided to accept a contract under Award conditions. Mr Scott said that the contract gave him a sense of security. He was very pleased to work there and had never received any negative feedback. Mr Scott said that at the time of signing this document, he understood that at the end of 1995, there would be another formality. If the employers so desired, there would be another application or another interview. Mr Scott said, however, that his feeling was that he had been working there and had every reason to believe that he would continue after this contract expired. He said that he looked at it as somewhat of a formality.
Mr Scott said that at the end of 1995, his position was advertised again. He once again applied and was granted an interview. This time, however, he was unsuccessful in his application.
Mr Scott said that he took very little notice of the differences between the various categories of employment at TAFE. He understood that as a “casual”, if he continued to do his work right, he would be there almost in a permanent sense. Before 1994, he was not aware of anybody getting contracts at the beginning of the year or at the end of the previous academic year to cover just one academic year.
Mr Scott said that he thought that the interview process in 1994 was a mere formality in that he had already established himself in that he knew they wanted him and had encouraged him to apply. He had every reason to believe he would get the job. In cross-examination, Mr Scott acknowledged that by going through an interview process, there would always be a risk of his not winning the job. During cross-examination, Mr Scott was also asked why, in his application form to this court, he declared that his period of employment was from 2 February 1995 to 20 December 1995. Mr Scott said that he referred in that application form to the contract period and had not had any assistance in completing the form. Mr Scott did acknowledge that the way in which he was employed under the contract was very different from the way he was employed as a casual employee.
Mr Scott said that when he applied for the position at the end of 1994, he expressed it as a desire to secure a longer term contract than just one year. The longer term was offered to him under the workplace agreement, but the contract he eventually signed under the award was for a period of one year only.
Constantinos Emmanuelle
Mr Emmanuelle is the Program Manager for Graphic Design and Multimedia at TAFE. Mr Emmanuelle has been with TAFE for six years. He said that many people employed as lecturers at TAFE had won their positions, not by going through an interview process, but by turning up on the day and looking for a job when the college was looking for lecturers.
The bulk of Mr Emmanuelle's evidence related to what happened during the selection process at the end of 1995. For reasons which will become clear later in these reasons for judgment, I do not consider that it is necessary to set out his evidence in relation to those matters here.
Leonard Bresland
Mr Bresland is employed as the Manager of TAFE Admission Systems and Business Development. He has had long experience in the Department of TAFE and Training. He started at TAFE in 1967. He has held a variety of positions, both academic and managerial.
Mr Bresland gave evidence that he has been involved in selecting students for the Department of Nursing for the past five years. There are two intakes per year. Mr Bresland's evidence was that the number of students applying for nursing studies has decreased from 339 eligible applicants in 1995 to 221 in 1996 at the Mt Lawley campus.
Mr Bresland was involved in the merit selection process for the positions advertised at the end of 1995 in relation to lecturing positions in the School of Nursing. His evidence was that the decision not to appoint those applicants in this matter who had been lecturers in nursing was made solely on the basis of merit. As I have said before, I do not intend to go into the merit selection process in detail as I do not consider it is relevant.
John Tarry and Anthony David Jones were also on selection panels and I do not propose to set out their evidence.
Daniel Joseph Cloghan
Mr Cloghan is the Director of Human Resources and Labour Relations at the Western Australian Department of Training. Prior to that, he had been the Director of Labour Relations since November 1993.
Mr Cloghan stated that a permanent employee is provided for in the TAFE Lecturers Award and essentially provides for permanency or on-going employment. The Award also provides for “temporary” lecturers who can be of a fixed-term duration or alternatively at the discretion of the employer. The leave entitlements are contained in the award under what is referred to as "vacation leave". For permanent employees, the leave provisions are paid throughout the vacation period. Should they have completed a full college or academic year, the “temporary” lecturers are paid for those periods for breaks during the college year, and at the end of the college year they continue to be paid until the commencement of the next academic year.
Mr Cloghan said that the pay for “temporary” lecturers in respect of holidays consisted of their accrued entitlements over the previous academic year. When asked whether “temporary” lecturers were actually on annual leave during Christmas, Mr Cloghan said that for “temporary” lecturers on a fixed term contract, for the period of time after their contract has ended they are not working for the Department, but they are receiving their accrued leave entitlement over that period. For convenience, it is paid on a fortnightly basis, in the same way as they are paid throughout the college academic year.
Mr Cloghan's evidence was that if “temporary” lecturers are on campus during the annual leave period, it is entirely of their own volition. They would not be being paid for work they were carrying out.
Mr Cloghan said that when section 8(1)(a) of the Public Sector Management Act 1994 (WA) came into force, he was involved in the Western Australian Department of Training's response to the enactment of the Act in relation to TAFE lecturers.
Mr Cloghan said that at the end of each academic year, enormous numbers of vacancies occur in relation to “temporary” lecturers as a result of the contracts coming to an end. As a consequence of that, there are vacancies in the following year. It was determined as a consequence of the Public Sector Management Act 1994 (WA) that those positions should be advertised and filled on the basis of merit and equity.
Section 8(1)(a) of the Public Sector Management Act 1994 (WA) reads as follows:
"General Principles of Human Resource Management
8(1) The principles of human resource management that are to be observed and in relation to the public sector are that -
(a) all selection processes are to be directed towards, and based on, a proper assessment of merit and equity"
Mr Cloghan gave evidence that he prepared a letter for distribution to “temporary” lecturers and forwarded to the Colleges of TAFE to each individual managing director as a pro forma for them. The purpose of the letter was to indicate to “temporary” lecturers that they could express an interest in workplace agreements. Evidence was given by the applicants in this matter that they received a copy of that letter.
Mr Cloghan gave evidence that a workplace agreement is a contract which indicates some or all of the conditions of employment pertaining to that employee, or a collection of employees, and the employer. A workplace agreement can come to bind two parties by agreement and subject to the Commissioner for Workplace Agreements being satisfied that the requirements of the Act have been met. One of the conditions is that there had been no coercion or threats in relation to their entering into that agreement. No complaint of that nature had been laid against the Minister for Education, his staff, his servants or agents.
Mr Cloghan's evidence was that the offer of a three-year workplace agreement was only open to those lecturers who had been competitively selected in the past.
Mr Cloghan said subsequent events overtook this letter in that the union took industrial action. Mr Cloghan's evidence was that it also became clear that many “temporary” lecturers who claimed they had been competitively selected in the past were unable to substantiate that. They felt they were being unfairly disadvantaged. It was also felt that the people who had been competitively selected in the past were selected for positions vacant in the past, and it was inappropriate and wrong to apply that selection process to a position in the future. This involved a reassessment of what was required by section 8 of the Public Sector Management Act 1994 (WA).
Mr Cloghan explained that at that point, he interpreted section 8(1)(a) of the Public Sector Management Act 1994 (WA) to mean that it applied only to positions becoming vacant in the future. Mr Cloghan said:
"It was then, I suppose, discovered, or thought it was, to apply the Act appropriately, it could only be for positions that became vacant at the time and in the future and, as a result of that, the assessment of how the Act should be applied, that a decision was made to advertise all vacant positions." (transcript page 717)
Mr Cloghan was involved in the Industrial Relations Commission hearings as an advocate and also in discussions outside of the Commission hearings. On November 21, 1994, the parties were directed by Commissioner Frawley to encapsulate the view of how he believed this matter should be resolved. That was recorded in a statement under his signature. In general terms, the statement said that all positions should be advertised and filled on the basis of merit and equity. It mentioned the ability for employees to take up workplace agreements, should they wish to do so.
Mr Cloghan said that the practice which had occurred in the past of “rolling over” the contracts of employment did not constitute filling vacancies on the basis of merit selection. Mr Cloghan said that this constituted bad human resources management practice, irrespective of the Public Sector Management Act 1994 (WA).
Mr Cloghan said he gave advice to the Chief Executive that given the Act, this practice was not appropriate and it was not appropriate in terms of good human resource practice. He said that this was because many of the positions had been filled in the past in a number of ways. Frequently, they were filled on the basis of who was available or that somebody happened to know that somebody was able to do the particular job and, in some cases, friends or relatives of people already working at TAFE were employed. Another practice was that people came in as casual lecturers working so many hours; they then went on to a part-time basis, and then to being employed on a full-time basis, again with a contract; but there had been no selection process at all for those people. Irrespective of the Public Sector Management Act 1994 (WA), it was felt that the “rolling-over” of contracts of these people was virtually confirming and condoning a bad practice in the past.
When asked in cross-examination whether it was possible to dismiss such an employee for poor performance, Mr Cloghan agreed that it was but said that the issue for the Department is to ensure that it gets the best people to meet the needs of the students and that can only be achieved by having a competitive selection process.
Mr Cloghan gave evidence relating to what was referred to as an "on/off list" in TAFE. At the end of each academic year, colleges were asked to advise the Department's central office as to the need of the number of “temporary” lecturers for the following academic year. In addition to need, they were asked to make a determination in terms of the suitability of the performance of those people. They were actually asked to determine whether the performance of the “temporary” lecturers warranted ongoing employment. Where there were more “temporary” lecturers than there were positions vacant for the following year, the colleges had to make a selection as to who would continue in the following academic year. Thus, the “temporary” lecturers were “rolled over” if their performance warranted continued employment and if there was still a position for them in the next academic year.
When asked in cross-examination whether the enormous number of vacancies occurring at the end of each year were fictional vacancies only, Mr Cloghan replied that the reality is that the “temporary” lecturer and the employer had entered into a contract and agreed mutually that it terminates on a particular date.
When cross-examined as to the contents of his letter to all “temporary” lecturers before the order was handed down by Commissioner Frawley, Mr Cloghan admitted that the language of the letter was not as clear as one would like, and did not state that the offer of a workplace agreement was only made to people who had been competitively selected. Mr Cloghan said, however, that the letter was subject to a number of flyers that were sent out by the Department which clarified this. Mr Cloghan said that only a person who had been competitively selected would have been able to enter into a workplace agreement without his or her job being advertised.
Mr Cloghan agreed with Ms Brown for the applicants that the question of workplace agreements was linked with the changes in the industrial landscape which occurred in or around 1993. It was also connected with concern about the union applying to obtain a federal award rather than state awards. Mr Cloghan was shown a memorandum to the Minister for Education from the Acting Chief Executive of the WA Department of Training, dated 1 November 1994. Mr Cloghan said that he had personally drafted that memorandum. On the first page of that memorandum, it states:
"Each year, the department engages in a process whereby temporary lecturers who are employed for a fixed term are advised of their 'termination', and the offer of a new contract if they are to be engaged for the next academic year. The process is commonly referred to as the “on/off” list.
Despite their “termination”, which in 1994 is December 21, temporary employees receive a salary during vacation periods in the same proportion to the amount of time which they have worked during the college year."
When asked why the word "termination" appeared in inverted commas, Mr Cloghan said he did not recall. He said it could well be because the advice that the “temporary” lecturers received at the end of the year used the word "termination". When shown one of those letters, it was pointed out to Mr Cloghan that the letter did not use the word "termination", he said that he did not have the document in front of him when he was preparing the draft. He simply could not remember.
Further down in the first page of the letter of 1 November 1994 under the heading "Workplace Reform", it states:
"The department's agenda for reform of lecturers' conditions of employment is well-known. However, that reform can only be achieved through individual workplace agreements or enterprise bargaining . . .
While the number of workplace agreements has been increasing, it is insufficient to make a sizeable imprint on workplace reform . . . . As a consequence, the department has to give consideration to advancing workplace reform by utilising other strategies, and the 1995 recruitment of temporary lecturers is an option which must be assessed."
Mr Cloghan said the Department was trying to achieve an organisation which was responsive and flexible, and met the needs of students and industry.
When asked whether that part of the letter just referred to meant that where the Department could not get an agreement with the union about enterprise bargaining, other things needed to be looked at and a key tool or strategy was going to be the way “temporary” lecturers were recruited, Mr Cloghan denied that. He said that it was just one option available to the Department.
Mr Cloghan denied that it meant that the way the Department went about "recruiting" “temporary” lecturers could be used to change the conditions of employment. He said the only way it could be done was with the agreement of those lecturers. It is not as though they could impose the changes that the Department sought on these individuals.
On page 2 of that letter, it refers to the new provisions of the Public Sector Management Act 1994 (WA) and states,
"It can be seriously argued that the present “on/off” process, especially for those lecturers who have not been competitively selected, does not comply with the above first-mentioned general principle of HR management.
For the above reason, and the need to enhance workplace reform, it is necessary to consider advertising all temporary lecturer positions in 1995, where employees have not been competitively selected."
Further down on that page, it refers to the union attempting to obtain a federal award. It goes on to say,
"While it is not expected that the AIRC will issue a federal award prior to the appeal being determined, it is anticipated that the union will seek an interim federal award, should the department pursue workplace agreements for a large number of temporary lecturers.
Further, the validity of workplace agreements is questionable, should a federal award be issued for lecturers. However, it is felt that their validity is more sustainable if registered prior to a federal award, rather than post. For this reason, it is necessary to obtain as many workplace agreements as possible, prior to the federal award issuing."
Mr Cloghan agreed in cross-examination that there was a federal award looming which would cut across the state government area of reform and, for that reason, they needed to get as many workplace agreements into place as possible, because the federal award would overrule workplace agreements. Getting as many workplace agreements as possible in place prior to that would be one way of advancing those conditions of employment.
In the summary on page 3 of the letters, it is stated:
"For workplace reform and good human resources practices, it is advantageous for the department to abandon the previous practice of "rolling over" each year approximately 700 temporary lecturers.
In view of the likelihood of a federal award, it is also advantageous to maximise workplace agreements prior to a federal award being issued. Furthermore, to optimise workplace agreements in any advertising process, it is necessary to give potential employees a choice, but one which makes a long-term agreement more attractive than a short-term contract under the TAFE award."
The recommendation at the end of the letter was that all “temporary” lecturers who had been competitively selected be offered a three-year workplace agreement, and all remaining positions be advertised on the basis of a 12-month contract or a three-year workplace agreement.
Mr Cloghan said that they made the workplace agreement an attractive long-term agreement rather than a short-term contract under the award because of equity reasons as some people had already signed the workplace agreements for three years.
When cross-examined on the provisions of section 8 of the Public Sector Management Act 1994 (WA), Mr Cloghan's evidence was that there was no definition of what "selection processes" in section 8 needed to be. There was no requirement for advertisement but Mr Cloghan said he was not sure how to treat people, and make an assessment of their merit and equity if their positions are not advertised. When it was suggested to him that an alternative was to do proper staff appraisals, Mr Cloghan said that the Department wanted to know that the best people available in the community were occupying the positions. Mr Cloghan said that people who had been merit selected in the past could not be considered as continuously meritorious and that must only be for those positions that arise at any particular time. Put simply, Mr Cloghan said that if there is a vacancy, the most suitable person for that particular position is selected from that pool of applicants available at that particular time. However, when vacancies arise in the future, they would be excluding people from a future vacancy on the basis of selection for a past vacancy. Mr Cloghan said it was different from the case of a permanent employee because there was an ongoing relationship between the employer and employee. He said that with a “temporary” lecturer, that relationship comes to an end at the end of the contract and there is then a vacancy. There is no substantive person in the position which is required for the following year, hence the reason to advertise the position. Mr Cloghan stressed that there was a recognition in the Award between the union and the Department that there would be permanent employees and fixed-term contract employees, so that when they created the agreement, the parties themselves recognised the difference between permanent and fixed-term contract employees, and there had never been an argument to say that fixed-term contract employees somehow became permanent employees by some effluxion of time. Mr Cloghan said that if you were under a fixed-term contract of employment, that never automatically guaranteed you on-going employment because it was subject to performance and need.
Katherine Marie White
Ms White is the Managing Director of the North Metropolitan College of TAFE. The three main campuses are at Carine, Balga and Joondalup. There are also various other sites north of the river. Ms White has overall responsibility for the management of the college. Her area of responsibility is over about 30,000 students and 1,100 staff members.
Ms White gave evidence in relation to the "on/off list". This system operated for many years up until about 1994. Ms White's evidence was that the first step in the process of the "on/off list" was the letter from the Department to all “temporary” staff, confirming that their contracts would cease at the end of the year and letting them know that they would be contacted if there was a position available the next year.
At or about the same time, a letter was sent to each college with a list of the names of all the “temporary” staff. Colleges were asked to indicate by ticking a relevant column of "On" or "Off" whether a particular temporary staff member was required for the following year. That letter came from the Human Resources section of the Department of Training.
The colleges were provided with a list of factors to be taken into account in determining whether “temporary” staff were to be retained. Those factors included full-time equivalent positions as determined by the resource agreement, staff proceeding on leave without pay for the following year, staff proceeding on long-service leave for the following year, staff returning from leave without pay from the preceding year; staff returning from long-service leave in the following year, and staff who may be transferred at the end of the current academic year.
The Director or Assistant Director of each college would sit down with the senior lecturers who were managing individual sections at that time, and work out what courses they were going to deliver, how many staff they would need and what sort of skills were needed in the staff for the following year. There might be various reasons why a “temporary” lecturer might receive a tick in the "Off" column. The most likely reason would be that they were not going to offer a particular course the next year, so the staff member would not be required. In other cases, the lecturer would have decided himself or herself to leave. Alternatively, the college may not have been happy with the lecturer's performance and so choose not to give them a position in the following year.
The formal procedure after that was that the college would return the list to the Department, who would then send the letters to the lecturers. In most cases, the senior lecturer would have informally mentioned to the staff member the chances of having a position in the following year. In a situation in which the college had more “temporary” lecturers than positions available for the following year, custom and practice was usually that the last “temporary” lecturer put on would be the first one put off.
Ms White gave evidence that in her understanding the main reason for there being a distinction between permanent lecturers and “temporary” lecturers was to cater for the fluctuations in both the course TAFE offers and the number of students. The reason TAFE has “temporary” staff is so that it can have the flexibility to either put more people on or put people off to cater for the number of students in the courses.
Ms White's understanding of the selection processes that existed prior to 1993, in comparison with the selection processes in 1994 and 1995, was that formerly it was fairly ad hoc. In some cases there were advertisements and interviews, but in other cases it was a matter of finding a person who it was thought could do the job and offering that person a position.
One of the common ways for people to get a full-time, temporary position was first of all to be a casual staff member, teaching two or four hours a week and gradually have those hours built up. When a person was teaching enough hours, he or she became a “temporary” lecturer. There was a loose agreement that once a staff member was teaching more than so many hours a week on a casual basis, he or she should be converted to a “fractional temporary” lecturer.
Ms White said that the other reason was that if a “temporary” lecturer teaching about 20 hours a week had pretty much a full-time load, or close to it. If he or she is employed as a “casual” rather than as a “temporary”, the college misses out on the "duties other than teaching" component. For that reason, it was an efficiency measure for the college as well. This loose agreement was with the State Schoolteachers' Union at the time. The problem with this was that it was a “backdoor” method of getting a full-time job without going through any merit selection processes. Since 1993 and 1994, the TAFE system had been facing a lot of competition that it had not previously faced. It was very important that not only was TAFE to have good staff but that it should be seen to have good staff. A merit selection process would help TAFE to ensure that.
As an example of the "backdoor" method of getting a job at TAFE, Ms White referred to her own example. Her mother had met the head of the Department at church one Sunday, who had asked her, "Do you know anyone who could teach computing?" and her mother said, "My daughter can", and that was how Ms White got the job. She was 14 years in the TAFE system as a lecturer without ever being formally interviewed.
Ms White said that prior to the enactment of the Public Sector Management Act 1994 (WA), there was only merit selection for new people coming into the system in relation to new positions that were being advertised.
During cross-examination, Ms White was unable to say what proportion of “temporary” staff would have gained their positions through the "backdoor" method.
THE PROVISIONS OF THE AWARD
The parties provided the Court with a certified copy of the relevant Award which is headed “Teachers (Public Sector, Technical and Further Education) Western Australia Interim Award 1995” which was as varied to 28 November 1995. It should be noted that this 1995 Award came into being some years after nearly all of the applicants had started work as TAFE lecturers. It is not clear what the previous Award provisions were but for the purposes of these Reasons for Judgment, I have assumed that the previous Award provisions were in all relevant respects the same as the 1995 Award provisions.
Clause 7 of that Award headed “Contract of Service” states at subclause 2 as follows:
“(2) A person may be appointed full time or part time -
(a) on a temporary basis which may be -
(i) for a fixed term; or
(ii) at the discretion of the employer; or
(b) on a permanent basis which may include a probation period; or
(3) A person may be employed on a casual hourly basis.
Subclause (7) of Clause 7 of the Award states:
“(7) Subject to subclause (8), the employment of a temporary employee may be terminated at any time upon the giving of one week’s notice.”
Subclause (8) states:
“(8) Where a temporary employee is employed to fill a short-term vacancy, that person’s employment with the employer lapses from the date that the employer determines that the vacancy no longer exists.”
Clause 24 provides for vacations for “teaching staff” which seem to be identical for both permanent and “temporary” lecturers.
It is to be noted that the provisions of Clause 7 of the Award in relation to “temporary” lecturers do not simply provide for appointment of “temporary” lecturers for a fixed term. These lecturers may also be appointed “at the discretion of the employer”. This is not inconsistent with the practice as described by each of the applicants and Mr Balfour for the union.
THE CREDIBILITY OF THE WITNESSES
Although several attempts were made to discredit many of the witnesses in this case, I have no serious concerns about the evidence of any of them. There are, in fact, very few inconsistencies to be resolved. I note, however, that the applicants made references to various conversations with their superiors including Mr Bela Kotai, Mr Brian Paterson, Mr Booker and Ms Bishop and that these people were not were called to give evidence. In these circumstances, I accept that what they are alleged to have said was in fact said.
WAS THERE A TERMINATION AT THE INITIATIVE OF
THE EMPLOYER?
On behalf of the applicants, it was initially submitted that each of the applicants held a reasonable belief that they had continuing employment, as “temporary” on-going employees subject to one-week’s notice and that there was a termination of that employment at the initiative of the employer. It was said that the termination at the initiative of the employer arose as a consequence of the fact that there was a decision by the employer, during the employment of each applicant, to engage employees other than the applicants to fill the employees’ positions. It was said that this was a termination of the employment relationship at the initiative of the employer. That submission was made notwithstanding the respondent’s contention that there was a document sent to each applicant by the respondent which specified an end date and which ended by effluxion of time. On behalf of the applicants it was submitted that the documents outlining these arrangements were so at odds with the behaviour of the respondent over a lengthy period, that they represented an empty formality devoid of any practical meaning and that the reality of their contractual situation was that they enjoyed on-going employment terminable on a week’s notice. It was said that the applicants did not regard themselves as, nor did the respondent treat them as, fixed-term contract employees. This belief was said to be supported by:
1. the repeated annual confirmations of their appointments for many consecutive years (except in the case of Mr Scott);
2. the time tabling of classes and teachers which preceded the contractual documents being sent to the applicants; and
3. the on-going nature (for example, during holidays) of the applicants’ duties.
It was further submitted on behalf of the applicants that during the course of their employment and particularly following events in 1994, the letters of appointment became documents the main purpose of which was to avoid the provisions of the Act.
On behalf of the applicants it was submitted that having regard to the arrangements and history of the employment relationship between each of the applicants individually and the employer, the applicants were in fact continuing employees with termination of whose employment could only be lawfully effected by the proper giving of notice, for a valid reason, and having regard to the requirements to observe procedural and substantive fairness under the Act. It was further submitted that each of the applicants had a reasonable expectation of continuing employment with the respondent based on the history and facts of the employment relationship.
On behalf of the respondent it was initially submitted that this Court has no jurisdiction to entertain any of the applications currently before it, there being no termination at the initiative of the respondent in any of the cases. As a finding of such termination is a pre-condition to the exercise of this Court’s jurisdiction pursuant to Division 3 Part VI Part 4A of the Act, it was submitted that the applications ought to be dismissed.
It was submitted by the respondent that in relation to each matter there was a written contract of employment between the applicant and respondent, a term of which was that the period of the applicant’s employment was to be from 2 February 1995 to 20 December 1995. Each contract was received by the applicant prior to the period of employment commencing and, other than in the case of Ms Girvan-Brown, signed prior to the period of employment commencing. It was submitted that whilst contracts of employment must be looked at in the context of the provisions of the Workplace Relations Act and the Regulations made pursuant to it, as a general rule, the ordinary common law principles of contract apply to contracts of employment. It was submitted that unless there are compelling reasons not to, the Court ought to enforce the agreement between each applicant and the respondent that the period of employment end by effluxion of time on 20 December 1995.
Since the initial submissions were made, the Full Court has handed down its decision in Fisher v Edith Cowan University(1997) 72 IR 464. In that case, the Full Court said (at page 469 - 470) as follows:
“The Recommendation and, therefore, the Convention recognise that whilst on their face contracts of employment for a specified period of time may provide for consensual termination of the employment relationship by the effluxion of the period specified in the employment contract, that termination may, in certain circumstances, be a termination at the initiative of the employer. For example, if an employer arranges for an employee to render service under consecutive contracts of employment for specified periods of short duration, where the nature of the employment is appropriate for a contract of indeterminate duration, and the employee had no say in the terms of the agreement, it may be said that the contract served the purpose of the employer by providing additional control over the employee. In such circumstances, if the employment relationship is terminated by the refusal of the employer to “roll over” the employment contract, the termination may be seen as part and parcel of an initiative taken by the employer at the commencement of the contract of employment to reserve that power.
By referring to “recourse to contracts of employment for a specified period the aim of which is to avoid the protection resulting from the Convention (and the Recommendation)”, the terms of the Convention and the Recommendation recognise that the use of such contracts may be at the direction, and for the benefit, of the employer and that entry into such a contract by an employee may not signify either the intention or the desire of the employee to terminate the employment relationship at the end of the period specified in the employment contract.
. . . In Victoria v Commonwealth of Australia (at 709; 431) the High Court, in considering the terms of ss 170DC, 170DE(1) and 170DF of the Act, stated that there was no indication in those sections that the words “[a]n employer must not terminate an employee’s employment” used therein were to be construed as applying to employment terminated by expiration of the term during which the employment relationship is to exist according to the terms of the contract.
Of course, whether an employment relationship continues to exist is a question of fact (see: Burn v Australian Airlines Limited (1995) 185 CLR 410 per Brennan CJ, Dawson, Toohey JJ at 428) and a law deeming the employment relationship to exist irrespective of the effect of the employment contract would be a relevant consideration in making such a finding of fact.
That is to say, if to give effect to the Convention and the Recommendation provision of “adequate safeguards” is made by deeming contracts of employment for a specified period to be of indeterminate duration, reliance by the employer upon the expiration of such a contract according to its terms would, unless the employer and the employee had a mutual intention that the employment relationship be terminated, be a repudiation of the employment relationship and a termination of employment at the initiative of the employer to which the provisions of Division 3 would apply.”
The Full Court went on to say at page 471:
“There may also be termination of the employment at the initiative of the employer and not pursuant to the mutual will of the parties if the terms of a fixed-period contract have been varied in the course of performance of the contract, or the contract has been abandoned and replaced by another agreement, or the employer has engaged in conduct or representations which estop the employer from relying upon the terms of the contract as the means by which the employment relationship has been terminated. In those circumstances, an employee may show that reliance by the employer upon the purported effluxion of the period of time for employment is, in fact, termination of the employment at the employer’s initiative.”
After the decision of the Full Court in Fisher v Edith Cowan Universityhad been handed down, the parties made further submissions in relation to this matter. On behalf of the applicants it was submitted that the Full Court identified some circumstances in which the employer may reserve to itself the power to terminate the employment relationship by refusal of the employer to “roll over” the employment contract in three instances (although it was further submitted that these examples provided by the Full Court were not intended to be an exhaustive or exclusive list of the circumstances in which there is true agreement between the parties for consensual termination of employment at a specified time). Those circumstances were said to be:
(a) where there are consecutive contracts of a short duration;
(b) the nature of the employment is appropriate for a contract of indeterminate duration; and
(c) the employee had not say in the terms of the agreement.
Submissions were made on behalf of the applicants in relation to each of these three circumstances and how they applied to the present case. For example, in relation to consecutive contracts of employment, it was submitted that in the case of all of the applicants, prior to the end of 1994, there was a history of employment with the same employer with “consecutive contracts of a short duration” rolled over without discussion or negotiation with the employee prior to the conclusion of the academic year. In relation to the question of whether contracts of an indefinite duration may be appropriate, it was submitted that the employer here is an educational institution for whom contracts of an indeterminate period would clearly be applicable. This is said to be underlined by reference to clause 7(2) of the Award which, it was submitted, indicates that the appropriateness of an indeterminate period of employment is contemplated under the Award and may be regarded as appropriate in this industry. It was submitted that at all times the applicants regarded themselves, and were treated by their employer, as continuing employees with timetabling, enrolments and class preparation duties continuing through holidays after conclusion and prior to beginning of academic years each year. It was further submitted that the applicants had no meaningful ability to negotiate the terms of their employment. In relation to the contract entered into at the beginning of 1995 following advertisements, applications and interviews in 1994, it was submitted that the only choice presented to the applicants was between continuation of employment under Award conditions or entering into a workplace agreement. It was said that the applicants gave evidence that they understood that by rejecting employment under a workplace agreement, they were doing no more than indicating that they wished their employment to continue as it had done to be governed by terms and conditions of the Award. It was submitted that the choice between employment under Award terms and conditions and entering into a workplace agreement cannot be regarded as an agreement between the employer and employee that the contract would come to an end at a date nominated by the employer without further action being taken by the employer.
It was further submitted on behalf of the applicants that it is beyond doubt that the respondent employer had over many years established a pattern of rolling over employment of employees from one year to the next, and that the advertisement, application and interview process compulsorily engaged in by these applicants in 1994 cannot have the effect of breaking this pattern. It was said that the documents signed by the applicants at the beginning of 1995 do not vary significantly from letters of appointment signed in previous years.
The respondent submitted that none of the applicants was terminated at the respondent’s initiative. It was said that in the case of each of the applicants, their employment was governed by valid contracts of employment which commenced on 2 February 1995 and which expired by effluxion of time on 20 December 1995. It was said that the Full Court in Fisher held that, notwithstanding the comments of the High Court in Victoria and Others v Commonwealth, the employment relationship may continue beyond the expiration of the term of the employment as provided in the contract of employment. It was said that the Full Court in Fisher’s case rested this ultimate proposition on the principle that it is a question of fact whether the parties had a mutual intention that the employment relationship be terminated. If the parties did not, it was submitted, then it is implied in the Full Court’s reasoning that the term fixing the end of the contract is not effective. It was said that in its reasons for decision, the Full Court in Fisher’s case (by way of obiter) points to a number of miscellaneous circumstances in which the employment relationship may be deemed by the Court to continue, even though the agreed terms of the employment contract purport to provide for the expiration of that contract and the relationship.
It was submitted by the respondent that if the applicants wished to argue that the nature of their employment was such that it was inappropriate for them to employed on fixed-term contracts and this argument was accepted with the result that the applicants, or some of them, were deemed by the Court to be employed on contracts of indeterminate duration, rather than the fixed-term contracts into which they entered, such a decision would have the effect that the Workplace Relations Act 1996 would impair the State’s right to determine the term of appointment of its employees and would thus constitute an infringement of the applied limitation on the Commonwealth’s legislative powers under section 51 of the Commonwealth Constitution being that the Commonwealth cannot exercise legislative powers which interfere with or curtail the government functions of the State or with its capacity to function as a government. It was submitted that it follows therefore that an inquiry by the Court into whether it was appropriate to offer fixed-term contracts in this case is a matter beyond the jurisdiction of the Court.
It was submitted in any event on behalf of the respondent that an employee alleging a termination at the employer’s initiative is required to show, to the Court’s satisfaction, that the contracts were consecutive, that the contracts were of short duration, that the nature of the employment is inappropriate for contracts of specified periods, and that the employee had no say in the terms of the agreement. It was submitted that in relation to the applicant Scott, it cannot be said that he entered into consecutive contracts, his only period of employment with the respondent was from 2 February 1995 to 20 December 1995.
It was submitted on behalf of the respondent that in the present cases, the evidence overwhelmingly supports a finding that the system of employing temporary lecturers on one-year contracts represented a genuine attempt by the respondent to effectively and efficiently manage its resources and the provision of education to its students, and was not an attempt to avoid the Workplace Relations Act 1996 or to convert indeterminate employment to employment for fixed periods. It was said that by the actions taken in 1995, the respondent was complying with a legislative requirement designed to improve the public sector of this State, namely the Public Sector Management Act 1994 (WA). It was submitted that that being so, and the evidence also showing that:
1. each of the applicants voluntarily signed and intended to enter into fixed-term employment contracts for a one-year period (instead of a three-year term);
2. each of the applicants was aware that he or she was to undergo an interview process at the end of 1995;
3. none of the applicants had a reasonable expectation during 1995 of being automatically re-employed by the respondent in 1996, and further that this is, in any event, a matter the Court cannot inquire into because of the limits on the constitutional legislative power of the Commonwealth;
4. the Award by which the applicants and the respondent were bound contemplated the use of fixed-term contracts;
5. the contracts of employment between the applicants and the respondent were not varied in any significant respect relevant to the length of the contract or at all;
6. the contracts of employment between the applicants and the respondent were not abandoned by the respondent during the life of those contracts; and
7. there is no sufficient basis to estop the respondent relying upon the fixed-term of the applicants’ contracts of employment;
this Court should not find that the employment relationship in the case of any of the applicants continued beyond 20 December 1995, but should find that the employment relationship terminated by the effluxion of time, at the mutual intention of the parties.
It is my view that in the case of each of the applicants, with the exception of Mr Scott, the evidence shows that he or she was employed as a “temporary” lecturer on the understanding that each would receive “contracts” or formal documentation stating that the period of employment was to be a for a fixed term of approximately eleven months but that the reality would be that they would continue to be employed unless one of the following two circumstances happened, namely:
1. their performance was judged to be lacking; or
2. there were insufficient student enrolments to warrant their continued employment.
Each of the applicants, with the exception of Mr Scott, was told this and understood this to be the case. The respondent’s own witnesses confirmed that this was so. Their superiors, including Mr Kotai and Mr Paterson, told them this. They continued to be paid over the holiday periods and, like other members of staff, were sometimes required through the demands of the position, to work during the holiday breaks. Their employment was similar in most respects to that of “permanent” employees except that permanent employees had extra benefits such as long-service leave entitlements. It is my view that the “contracts” signed by each of the applicants prior to the end of 1994 did not represent accurately what was agreed between the parties to be the true nature and intention of their employment relationship. In some cases there were no written documents and sometimes the documents were plainly wrong. Each of the applicants signed the “contracts” because he or she had no say in this and was in any event told that it was merely a formality. Each of the applicants was reassured by their superiors that their employment was to continue unless their performance was lacking or unless there were not enough students for their courses. In the case of each of the applicants (with the exception of Mr Scott), they knew through the timetabling of classes and the allocation of courses, that they would continue to be employed for the following year.
At the end of 1994, the respondent unilaterally made a decision to advertise and interview for each of the positions held by the applicants. The applicants were given no say in this. They were simply told that unless they applied for and were successful after a round of interviews, they would no longer have their jobs. The same thing happened at the end of 1995, although at that time they were not “successful” in their applications.
I find as a matter of fact, in all of the circumstances of the cases of Ms Girvan-Brown, Mr Greeuw, Ms Watson, Ms Hynd and Ms Hari that their employment relationship was continuous between the time they were first appointed as “temporary” lecturers and 31 December 1995.
It is my view that clause 7 of the Award does not assist either party to any great extent because it provides for both contracts of a specified period of time and indeterminate contracts. The written “contracts” which the applicants were required to sign were of relatively short duration compared to the overall length of their service.
I do not consider that it is necessary, nor do I consider it desirable, to make a finding as to whether it was appropriate or inappropriate for their employment to be for any specific length of time. I simply find as a question of fact that in the case of each of the applicants, with the exception of Mr Scott, that their employment relationship had been continuous over a number of years. As to the appropriateness of the length of “temporary” employment, I will only note in passing that Mr Balfour said that there had been “temporary” lecturers in the TAFE system for up to 20 years, and that the respondent itself obviously considered that it would have been appropriate to employ each of the applicants for a period of at least three years from January 1995 because they were each offered three-year workplace agreements.
As to the respondent’s submission that the applicants had a say in the terms of their contracts in that each chose a one-year contract rather than a three-year workplace agreement, I shall simply make the point that the applicants were given no choice to continue their employment on the same terms and conditions as they had always agreed to be employed under, namely, that their employment would only cease if their performance was lacking or if there were insufficient enrolments. It is my view that the respondent in acting in the way that it did in suddenly changing the conditions of the applicants’ employment substantially varied the conditions under which the applicants were employed. They had hitherto been employed on the understanding that they would only have their employment terminated if the two events I have just described occurred. In the case of each of the applicants, the employer chose at the end of 1994 and 1995 to suddenly enforce the terms of the written contracts of employment and rely on the contention that the employment relationship had expired by effluxion of time under the terms of those contracts. There was no mutual intention that the employment relationship be terminated as the applicants had the decision imposed on them. They had the written “contracts” imposed on them after the interviews in December 1994.
On behalf of the respondent it has been argued that it had no choice in the matter and that it was simply bound to uphold the provisions of section 8 of the Public Sector Management Act 1994 (WA). It is my view that as I have found that the employment of the applicants (with the exception of Mr Scott) has in fact been continuous, the respondent was not required to conduct a proper assessment of merit and equity as there should not have been a “selection” process in the case of each of the applicants (with the exception of Mr Scott) because they already occupied positions.
Further, I am strengthened in my view that until the respondent decided to start enforcing the provisions of the “contracts” for “temporary” lecturers, he and his agents all considered “temporary” lecturers to be temporary in name only by the memorandum drafted by Mr Cloghan in November 1994 in which he used inverted commas around the word “termination” in respect to “temporary” lecturers. It appears to me that both the applicants on the one hand and the respondent and his agents on the other hand considered that there was in fact no termination of employment at the end of each academic year in respect of “temporary” lecturers. Further on in Mr Cloghan’s letter, he states that “it is advantageous for the department to abandon the previous practice of “rolling over” each year approximately 700 temporary lecturers”, which appears to me to be a good indication of how the respondent viewed the situation prior to 1995.
In the case of Mohazab v Dick Smith Electronics Pty Ltd1995 62 IR 200, the Full Court considered the meaning of the expression “termination at the initiative of the employer” and stated at page 205:
“Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for the termination. It addresses termination of the employment relationship by the employer. It accords with the purpose of the convention to treat the expression “termination at the initiative of the employer” as a reference to a termination that is brought about by the employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehend by the expression “termination of employment” in Siagian v Sainel 1994 54 IR 185 at 201 . . . . In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process.”
In my view, in this case, the action of the respondent in unilaterally changing the terms and conditions of the applicants’ employment by seeking to enforce the words of the written “contracts” instead of merely rolling over the successive short “contracts” in the manner previously agreed to and understood by all of the parties, constituted termination of employment at the initiative of the employer. The evidence is that the performance of none of the applicants was found wanting and there were sufficient student enrolments to warrant their continued employment.
MR SCOTT
What I have said above in relation to the other applicants does not apply to the position of Mr Scott. His evidence was that he clearly chose not to be a “temporary” lecturer but instead to be employed as a “casual” lecturer before the end of 1994 because he enjoyed the higher pay and the conditions of casual lecturing suited him. When the lecturing positions were advertised at the end of 1994, Mr Scott decided to apply as he was seeking more security from TAFE. Mr Scott acknowledged in his evidence, however, that at the time of signing the contract, he understood that at the end of 1995 there would be another formality. Mr Scott’s case is different from that of the other applicants in that he was not initially employed on the understanding that his employment would only end if his performance was inadequate or there were insufficient numbers of students. There was no continuous employment relationship built up between Mr Scott and the respondent sufficient to say that the contracts signed by him did not represent the true nature of the employment relationship.
THE CONSTITUTIONAL QUESTION
The respondent and with him the Attorneys-General of the States of Western Australia, Victoria and Queensland have all intervened in these proceedings. The Attorney-General for Queensland has indicated that he adopts and supports the submissions of the Attorney-General for the State of Western Australia. The Attorney-General for the State of Victoria has said that as the applicants make the following contentions:
1. that contracts of indeterminate duration were appropriate rather than fixed-term contracts;
2. the Court should deem the applicants were employed on contracts of indefinite duration; and
3. reinstatement was an appropriate remedy,
an inquiry by the Court into the appropriateness of whether an employee who is an applicant for relief in respect of termination of employment should be employed on a contract of indeterminate duration rather than by fixed term must also lead to an inquiry into matters such as the size and structures of the workforce of the employer.
In this case, I have not engaged in an inquiry as to whether the employees should be employed on contracts of indeterminate duration; I have simply found that their employment was in fact continuous.
The Victorian Attorney-General further submits that the ability of the State to determine the term of appointment of its employees is as critical to its capacity to function as a government as is the right to determine the number and identity of employees to be engaged. The Workplace Relations Act 1996 and any orders made under it only bind the State to the extent that the capacity of the State to function as a government is not impaired. Any impairment of the State’s rights in relation to engagement is sufficient to offend against the implied limitation regardless of any consideration of the degree of impairment. It is submitted that it is not appropriate for an assessment as to when the interference is compatible with the autonomy of the State. My findings, however, have been confined to the terms and conditions under which the applicants were in fact employed under by the respondent.
The Attorney-General for Western Australia adopts the submissions of the respondent. The respondent submitted that the construction or application of the Workplace Relations Act 1996 as contended for by the applicants would impair the State’s right to determine the term of appointment of its employees and the number and identity of its employees and would thus constitute an infringement of the implied limitation on the Commonwealth’s legislative powers under section 51 of the Commonwealth Constitution. I have already indicated that I do not propose to engage in an inquiry as to whether it was appropriate or inappropriate to have a length of employment for a particular period of time. The respondent’s submissions as to the constitutional question are lengthy and I do not propose to set them out in detail. Suffice it to say that because of the nature of the findings that I have made, I do not consider that constitutional issues have arisen.
HAS THERE BEEN A BREACH OF SECTION 170DC?
On behalf of the applicants it is submitted that the employment of each of the applicants in this case was terminated for reasons related to their conduct or performance as employees. It is submitted therefore that the terms of section 170DC(a) apply and that each of the applicants should have been given the opportunity to defend himself or herself against allegations in relation to conduct or performance. It was submitted that it is implicit in the course of action of the respondent in advertising the applicants’ positions that the respondent had concerns in relation to the conduct or performance of the existing employees. It is alleged that there was no opportunity for the applicants in this case to respond to the allegations because the allegations were never provided to the employee.
In response, the respondent submits that the requirements imposed by section 170DC of the Act do not apply in this case for two reasons:
1. the requirements of section 170DC(a) that an employee be given the opportunity to defend himself or herself against the allegations made is necessarily predicated on the assumption that there exists “allegations” in relation to which the employee ought to be heard. It was submitted that none of the applicants was terminated for reasons relating to their conduct or performance, and there were no allegations in relation to which the applicants ought to be have been given an opportunity to respond.
2. Further and in the alternative, the respondent submits that if section 170DC is held to otherwise apply to the termination of each of the applicants, section 170DC(b) applies in the present circumstances. That is, where a termination is held to arise by virtue of the expiry of a fixed-term contract, an employer “could not reasonably be expected to give the employee the opportunity” referred to in section 170DC(a). This is so for the reason that the employer and employee have agreed to the terms of the employment contract, and it was submitted that this Court ought not demand that an employer in such a situation advise or remind the employee of those terms.
The evidence on behalf of the respondent was firstly that there were no particular allegations against the performance of the applicants in this case. The respondent took the view that the applicants were bound by the terms of the fixed-term written contracts and that their employment simply expired on the expiration of the terms stated in the contract. It was argued that section 8 of the Public Sector Management Act 1994 (WA) applied and that as the respondent considered that vacancies had arisen upon the expiration of the contracts, a merit-selection procedure should apply. The positions were advertised, selection panels were formed, people interviewed and selections were made. It was put to this Court that the selection panels simply chose those people whom they considered would best be able to meet the requirements of the jobs. A further reason put forward by witnesses for the respondent for the necessity for a merit-selection process was that many TAFE lecturers had in the past been employed without going through any formal interview or merit-selection procedure.
In the circumstances of this case, I do not find on the balance of probabilities that there were any allegations against the conduct or performance of the applicants. In fact, the bulk of the evidence suggests that each was fulfilling his or her position to the at least the required level of competence. If this had not been so, they would not have been “rolled over” at the end of each year. I do not consider that there has been a breach of the provisions of section 170DC of the Act.
WAS THERE A VALID REASON FOR THE TERMINATION
OF THE EMPLOYMENT OF THE APPLICANTS?
The respondent asserts that there existed a valid reason for the termination of each of the applicants, which reason was based on the respondent’s operational requirements. The respondent’s case is that the relevant valid reason in relation to each of the applicants is to be found in the terms of section 8(1) of the Public Sector Management Act 1994 (WA) which has already been referred to. I have already indicated my view that as I have found that there was a continuous employment relationship between each of the applicants (with the exception of Mr Scott) and the respondent, section 8 of the Public Sector Management Act 1994 (WA) does not apply because the respondent was not bound to undergo a selection process. I stress that my view of the application of section 8(1) of the Public Sector Management Act 1994 (WA) is confined to the circumstances of this case. It may well be that many “temporary” lecturers now engaged in the TAFE system were at all times engaged on the basis that they would be employed under the terms of a fixed-term contract. I have already found that this is not the situation with the present applicants, with the exception of Mr Scott.
It is accepted by both parties that the adjective “valid” is, on the authorities, to be given the meaning of “sound, defensible or well founded”. A reason which is “capricious, fanciful, spiteful or prejudiced” cannot be a valid reason for the purposes of section 170DE(1). The reason must be valid based on the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. (Selvachandran v Peteron Plastics Pty Ltd (1995) 622 IR 371, at page 373, per Northrop J). It was submitted by the respondent that it is now well accepted that where an employer asserts operational requirements as the valid reason for a termination, the question which arises when considering the operation of section 170DE(1) is not whether it was open to the employer to take a different course, but rather whether the decision made was a bona fide decision based upon the operational requirements of the business. Thus, a decision by an employer to reorganise or restructure the business, provided it is a bona fide, is a decision for the employer and not a decision which this Court will seek to second guess or to substitute its own view of the appropriateness of the course of action taken.
It was submitted by the respondent that the selection panel process led directly to the respondent’s decision not to offer the applicants contract employment in 1996. It was submitted that the conclusion of the panels that the applicants were not the most meritorious candidates for the positions in question had the consequence that the employment contracts for the positions were offered to other persons. The respondent submitted that the integrity of the selection process as a whole, and the integrity and propriety of the interviews of each of the applicants was amply shown by the course of evidence before this Court.
It was submitted on behalf of the applicants that the question for this Court is whether the employees’ termination was for a valid reason based on the operational requirements of the employer. Where an employer is responding to a legislative requirement and as a result takes certain action, it does not necessarily follow that terminations flowing from that action are for a valid reason based on the operational requirements of the employer. It was submitted that there were simply too many steps between the alleged operational requirement to give effect to the provisions of the Public Sector Management Act 1994 (WA) and the termination of employment of these applicants to say that the terminations were based on the operational requirement to give effect to the Public Sector Management Act 1994 (WA). It was further submitted that the evidence showed that the merit-selection process and the decision to regard existing employees as though they were not employees gave rise to a situation where that merit-selection process masked what could be regarded as a redundancy situation.
In the case of Nettlefold v Kym Smoker Pty Ltd 1996 69 IR 370, Lee J said that the terms of the Workplace Relations Act 1996 suggest that it is arguable that one could construe “valid reason” as used in section 170DE(1) of the Act to mean that in all the circumstances a termination of the employment at the initiative of an employer must not be unjust or unfair. His Honour referred to the words of Lord Denning in Woods v W M Carr Services (Peterborough) Limited[1982] ICR 693 who said it is an implied term of an employment contract that an employer be “good and considerate” to its employees. Lee J said at page 372:
“By giving effect to the Convention the Act seeks to establish a balance between the right of an employer to duly manage an enterprise in which labour is employed and the right of an employee, and of the community, not to have the asset represented by the capacity of employees who provide such labour, whether skilled or unskilled, depreciated by incompetent or capricious management of labour by an employer.”
His Honour said in relation to the meaning of “operational requirements” in the Act that:
“In general terms it may be said that a termination of employment will be shown to be based on the operational requirements of an undertaking if the action of the employer is necessary to advance the undertaking and is consistent with management of the undertaking that meets the employer’s obligations to employees.” (at page 373)
In the case of Kerr v Jaroma Pty Ltd 1996 70 IR 469, Marshall J stated at page 473 that:
“It cannot be assumed that a mere desire by an employer to change the way it conducts its business which, in turn, leads to the termination of the employment of some of its employees, will necessarily found a valid reason for the terminations based upon the operational requirements of the undertaking.”
Marshall J said that one should remember when one is construing legislation which is based upon an International Convention that a generous approach must be taken to the interpretation of such legislation. His Honour said at page 476, in relation to the meaning of “valid reason”, that a reason which is based on the operational requirements of an undertaking does not thereby become “valid” because of it being so characterised from the subjective view of the employer. His Honour said:
“The question remains as to whether the employer has satisfied its onus of proof in showing that a reason it alleges to be based on its operational requirements, in fact, was justified or objectively defensible in the circumstances. The Court will in each case determine, in the particular circumstances prevailing, whether any termination alleged to have been taken due to operational requirements was nonetheless effected for a valid reason, ie, one which is defensible or justifiable on an objective analysis of the relevant facts.”
In the case of Westen v Union des Assurances de Paris (unreported IRCA 660/96 17 December 1996) his Honour Madgwick J, said at page 5:
“I adopt with gratitude the considerations raised by Lee J in Nettlefold that (in my own words):
(a) the community also has rights and interests to be accommodated in the ascertainment of the point of balance between the competing interests of employer and employee. I would not limit these public rights and interests to the important requirement, specifically mentioned by Lee J, of good husbandry of the labour force viewed as an economic asset. The community also has an interest in the inculcation and maintenance of appropriate standards of fair and proper dealings between the citizens, including employers (or their human agents in the case of corporations) and employees. We do not live by bread alone.
(b) the textual requirement that “[an] employer must not terminate . . . unless there is a valid reason . . . “ [emphasis added] is indicative that, objectively, the termination ought to be valid and that, accordingly, the employer must prove that the operational requirements of the undertaking, etc. “provided proper ground” for the termination.
(c) “operational requirements” is a broad term, apt to encompass everything that might affect the economic or efficacious performance (or cessation, or alteration of the mode of performance) of the undertaking, but necessarily including “the application of good management to the undertaking”, which in turn involves “management of the undertaking that meets the employer’s obligations to employees”.
It remains for this Court to decide whether the termination of the employment of each of the applicants was for a valid reason based on the employer’s operational requirements. I have already indicated my view that these applicants were in fact continuously employed. Even if I accept that the decision of the respondent was a bona fide response to section 8 of the Public Sector Management Act 1994 (WA), it does not necessarily follow that the terminations were for a valid reason. I do not propose to go into details of what happened at the interview process because I consider that that is irrelevant. Even if the decisions of the interview panels were bona fide, it is my view that this Court must look at the circumstances of the applicants’ employment in deciding whether or not there was a valid reason for their termination, based on the operational requirements of the respondent. In this case, each of these applicants had been employed and, by all accounts, had given faithful service to their employer for a number of years. They had always been led to believe that their employment would not be terminated unless their performance was lacking or there were insufficient student enrolments. Neither of those conditions apply in this case. The respondent has simply decided to terminate their employment relationship on the mistaken assumption that it was required to do so by the provisions of the Public Sector Management Act 1994 (WA) and because it has found others who, according to the selection panels, were better candidates for the position. In my view, that does not constitute a valid reason and terminating the employment of these applicants does not constitute the behaviour of a good and considerate employer. Any doubts the respondent may have had about the qualifications and abilities of these applicants must have been dispelled after they successfully went through interviews at the end of 1994. There was sufficient confidence in their abilities for the respondent to offer each applicant fixed-term employment for a period of three years under a workplace agreement. In these circumstances, it is difficult to accept that the operational requirements of the respondent’s undertaking were such as to necessitate the termination of the applicants’ employment one year after they had successfully competed for their own positions. The fact that there might be somebody else who may be somewhat better qualified to fill the position is not, in my view, a valid reason for terminating the employment of the applicants in all of the circumstances in this case.
THE APPROPRIATE REMEDY
The primary remedy under section 170EE of the Act for breaches of the Act is intended to be reinstatement. I raised my concerns to the parties in this matter about the possibility of making an order for reinstatement in view of the lapse of time.
The respondent has made submissions that an order made by this Court requiring that the respondent reinstate the applicants (or some of them) on terms no less favourable than those on which they were employed immediately before the alleged termination, is an order which exceeds the jurisdiction of the Court; that the order would infringe the impairment principle. The impairment principle, it is submitted, requires autonomy or freedom from Commonwealth control in respect of the manner in which the State or its agencies are organised and freedom to determine the number and identity of the persons it wishes to employ. It is submitted that it is critical to the respondent’s capacity to function as a provider of education to determine the number of its employees. It is said that if orders for reinstatement were made in relation to the applicants or some of them , the respondent would be forced to employ more employees than it would choose to in the independent exercise of its constitutional freedom to determine the size, shape and structure of its workforce.
If this submission is taken to its logical conclusion, then no reinstatement order could ever be made against any State body which has breached the provisions of the Workplace Relations Act 1996. It is my view that this is clearly not intended by Parliament and many orders have been made against the States in cases in this jurisdiction in the past.
On behalf of the applicants, it is submitted that leading authority regarding the practicability of reinstatement for the both the issues of time lapsed between termination of employment and relevance of employment of new staff, is the case of Johns v Gunn Limited1995 60 IR 258. In that case, Northrop J determined that “effluxion of time between the date of termination of employment and the date an order for reinstatement can be made does not, of itself, make reinstatement impracticable.” This decision was applied by Marshall J in Abbott Etherington v Horton Motors Pty Ltd1995 63 IR 394. If it is accepted that the respondent at all times felt entitled to simply regard the applicants as having their employment contracts expire by effluxion of time, this is not a case in which the employer sought to defeat the intention of the legislation by filling a vacancy after terminating the employment of one of its employees. The question for the Court remains, however, whether it is impracticable to order reinstatement of the applicants. In this case, the employer is a very large employer, and the evidence of its own witnesses is that it employs many TAFE lecturers on short-term contracts. There appears to be considerable flexibility and scope for the respondent in this case to absorb these five applicants. In these circumstances, I do not consider that there is sufficient evidence, regardless of the passage of time, to make a finding that it would be impracticable to reinstate these applicants.
The provisions of section 170EE of the Act further require payment of remuneration lost as a result of the termination. In this case, there is no evidence before me of remuneration lost over the period between the hearing of the evidence of the witnesses and today’s date. It is my view that attempts should be made to agree on the appropriate amount of compensation in each case. If this is not possible, liberty will be given to apply.
The Court orders and declares:
1. In the case of Michael Scott, the application be dismissed.
2. In the case of Fiona Elizabeth Girvan-Brown, John Greeuw, Gayle May Watson, Denise Margaret Hynd and Rita Hari, there has been a breach of the provisions of section 170DE(1) of the Workplace Relations Act 1996.
3. The respondent within 21 days reinstate the applicants Fiona Elizabeth Girvan-Brown, John Greeuw, Gayle May Watson, Denise Margaret Hynd and Rita Hari on terms no less favourable than those on which they were employed immediately before the termination and pay to each of those applicants the remuneration lost as a result of the unlawful terminations of their respective employment.
4. There be liberty to apply.
I certify that this and the preceding seventy one (71) pages are a true copy of the reasons for decision of Judicial Registrar Boon as recorded in the transcript and revised by the Judicial Registrar.
Associate :
Dated: 7 November 1997
APPEARANCES
Counsel for the Applicant: Ms S Brown and Mr A Drake-Brockman
Solicitors for the Applicant: Dwyer Durack
Counsel for the Respondent: Mr D Matthews and Mr M Lundberg
Solicitors for the Respondent: Crown Solicitor for the State of Western Australia
Dates of Hearing : 21, 22, 23 May, 1, 2, 3, 4, 5 & 8 July 1996
Final Submissions received July 1997
Date of Judgment : 7 November 1997
