C2003/2172, Transcript of Proceedings [2003] AIRCTrans 1993 (27 May 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT LAWLER

C2003/2172

CPSU

and

SPECIAL BROADCASTING SERVICES CORPORATION

Application under section 170LW of the Act
for settlement of dispute re alleged failure
to pay redundancy

SYDNEY

3.30 PM, FRIDAY, 9 MAY 2003

Hearing continuing

PN1

THE VICE PRESIDENT: Bryony, as you would have heard, Craig Collier is present at SBS as well as Ken Anderson. This is a further telephone conference in matter number C2003/2172 section 170LW application for settlement of a dispute CPSU v SBS. The telephone conference is being recorded by Auscript. I have received the submissions sent by Ms Feltham on behalf of the CPSU. Ms Mayne, have you had an opportunity to digest those submissions?

PN2

MS MAYNE: Yes, thank you, your Honour.

PN3

HER HONOUR: Can I just confirm there was no suggestion on the last occasion that Ms Zachariou had been terminated for misconduct or breach of the SBS code of conduct but rather it was a question of the position becoming redundant and no available work for her?

PN4

MS MAYNE: That is correct, your Honour.

PN5

HER HONOUR: Okay, would you agree that on the face of it the contract is unambiguously clear that the only ground for termination during the term of the contract is misconduct or breach of the SBS code of conduct?

PN6

MS MAYNE: It does state that, yes.

PN7

HER HONOUR: And consistent with what the contract states you advised in your letter of 18 December that SBS had no intention of terminating Ms Zachariou's employment during her current specified period of employment and that you assured the union that Ms Zachariou will be gainfully employed as a producer for the remainder of her specified period of engagement.

PN8

MS MAYNE: It was definitely our intention at that time in December.

PN9

HER HONOUR: Okay, well, it seems to me that the issues have now been clarified by the document that the union has submitted and subject to what you have to say, Mr Mayne, it seems reasonably clear that this is an agreement that's properly within jurisdiction. This is a dispute that's properly within jurisdiction under section 170LW as a dispute over the application of the agreement. It seems to me that there are two issues, firstly, was the termination authorised in the circumstance and if it wasn't what are the consequences of that, particularly in relation to clause 3.3.5.

PN10

On the basis of the terms of the contract and the letter and subject to your submissions, of course, my provisional view is that it is very clear that there was no entitlement on the part of SBS to terminate Ms Zachariou's contract before the expiry of its term and that therefore the issue becomes what application, if any, does clause 3.3.5 of the agreement have and that in turn will turn upon the - sorry, 3.3.6 is the clause under which the critical issue arises which is whether or not it can be said that Ms Zachariou has been employed in a single job performing the same duties and there would no doubt be some argument about what the proper construction of that is.

PN11

I note that the union raises an issue about a breach of the obligation to continue work, again, subject to submissions my provisional view on that is this is not the situation that that clause was directed towards and that one cannot prevent a termination that's otherwise regular from a curing simply by notifying a dispute in anticipation of the expiry of a notice period. That issue it seems to me takes something of a back seat if my provisional view about the validity of the termination is correct.

PN12

Now, I've sought to outline what my provisional views are on the basis of the material that's been put in. Perhaps I could seek your response, Ms Mayne, in the first instance?

PN13

MS MAYNE: Yes, actually, your Honour, Mr Anderson will outline our position first.

PN14

HER HONOUR: Fine.

PN15

MR ANDERSON: Thank you, your Honour. SBS subject to your preliminary views, of course, says that the Commission should not hear this matter under section 170LW of the Act for four main reasons, firstly, the clause particularly talks about procedures for preventing or settling disputes between the employer and the employee whose employment will be subject to the agreement. As a former employee it is SBSs contention that it is now inappropriate to deal with this matter under the provisions of the Act for that reason. Secondly, and for a similar reason clause 27 of the certified agreement - do you have that with you, your Honour?

PN16

THE VICE PRESIDENT: Yes.

PN17

MR ANDERSON: Clause 27 of the agreement also appears to preclude the matter from being dealt with as a dispute and 2.1:

PN18

Staff members who anticipate or are experiencing a problem relating to their employment -

PN19

Ms Zachariou is not an employee of SBS now and does not have any employment with the company after 13 April 2003. SBS would contend that this clause ceased to apply to Ms Zachariou on that date. Thirdly, if the Commission does not accept those arguments SBS would say that the provisions of clause 27 have not been followed by the CPSU and Ms Zachariou particular from clause 27.2.4 onward and those have not been met as late as 29 April 2003 when Mr Feltham visited SBS she did not take up an invitation to discuss any outstanding issue that she may have had with the company and that discussion took place with Ms Mayne in her office and, fourthly, should your Honour not agree with any of these arguments SBS would say the Commission should use discretion and say that this matter would be better dealt with under part 6A of the Act which is a comprehensive code for the unfair dismissal of an employee particularly now that the CPSU changed its mind and is now requesting reinstatement of Ms Zachariou and that can be found at paragraph 11 of their submission.

PN20

THE VICE PRESIDENT: Well, I thought there was a non binding consensus, in other words, people weren't committing themselves to a position finally but there was an non binding consensus on the last occasion that the unfair dismissal provisions would not be operative because of regulation 30(b) and the fact that Ms Zachariou was employed for a specified period and specified task.

PN21

MR ANDERSON: That's correct so if she was employed for a specified period or specified - - -

PN22

THE VICE PRESIDENT: So your fourth argument is that it should be dealt with under part 6A and peremptorily dismissed.

PN23

MR ANDERSON: That's correct - whether it will or won't be is again subject to argument. Secondly, something that you may not be aware of SBS paid Ms Zachariou for her contract out till 30 June. It wasn't that there was a unilateral dismissal at that date without notice or anything of the kind it's just that SBS has not got any work for her.

PN24

THE VICE PRESIDENT: Ms Feltham?

PN25

MS FELTHAM: In response to those submissions, I would submit that, firstly, the fact that Sophia is no longer an employee isn't of relevance because the dispute was triggered while Sophia was an employee. To simply say that the dispute resolution clause can be frustrated when it was a dispute about that very thing goes to the heart of the dispute resolution clause it doesn't seem that that can be relevant or have a purpose if that's going to be the response of SBS. I feel that SBS has acted in bad faith by terminating her employment while there was a dispute in place and that dispute had been in place since 17 October when Sophia first raised the issue.

PN26

THE VICE PRESIDENT: How much money would she be entitled to if the redundancy provision applied?

PN27

MS FELTHAM: I'm sorry, I don't know that, your Honour.

PN28

THE VICE PRESIDENT: Do you have any ballpark sense of that, Ms Mayne?

PN29

MS MAYNE: I'm sorry, I - - -

PN30

THE VICE PRESIDENT: How much money would Ms Zachariou be entitled to if the redundancy provisions were applied to her as though she were an ongoing employee.

PN31

MS MAYNE: I don't know the actual amount of money. It would be along the lines of if it was almost three years' service it would be four weeks' pay for each year's service, Ken?

PN32

THE VICE PRESIDENT: And if it was three years?

PN33

MS MAYNE: It would be 12 weeks' pay plus notice of five weeks plus a six week re-deployment period so that would be 12 and 5 is 17 and 6, 24 weeks' pay, that's ballpark.

PN34

THE VICE PRESIDENT: Ms Feltham, what do you say about the third proposition, namely that the procedures in clause 27 haven't been followed?

PN35

MS FELTHAM: I would completely disagree with that. We certainly notified SBS that we would be taking the matter to the Commission which is a notification of a dispute before - - -

PN36

THE VICE PRESIDENT: I think the point that that's a step that arises at clause 27.2.6 and that the Commission as a matter of discretion - I'm putting submissions into SBSs mouth here but I anticipate that spelt out more fully this is what will be said that as a matter of discretion the Commission will not intervene in a dispute while there are steps in the dispute resolution process that haven't been followed, so for example has the national secretary managing director level communication occurred?

PN37

MS FELTHAM: Yes, it has because we've actually been operating with the MEAA in this matter and the MEAA have been negotiating on Sophia's behalf up to this point. I mean there have been a number of meetings between Helen and Michelle ......, for instance, where this matter has been discussed and representations were made. There have been ongoing letters.

PN38

THE VICE PRESIDENT: The purpose of the initial telephone conference that occurred in this matter was to endeavour to better identify with greater precision the nature of the dispute for the purpose of making assessment of how best to dispose of it and to do that in a way which that is by telephone in a way which - so that adopting the course of a telephone conference was to try and minimise the cost and inconvenience to the parties in relation to matters which are really housekeeping in nature and then the purpose of today's telephone conference was to have suggested what Ms Feltham put down as a written articulation of the dispute and then to determine what would occur from here.

PN39

What Ms Feltham has put on paper has crystallised the dispute with considerable precision and the discussions that have occurred thus far in this conference have simply confirmed which matters are the specific matters in dispute. I have to say I'm a little taken aback by SBSs apparent position that it was entitled to terminate the contract on 17 April in the face of the unambiguous words of the contract that it would not be terminated before its expiry other than for misconduct or breach of the SBS guidelines and there's no issue of either of those things occurring.

PN40

MR ANDERSON: Could I interrupt you on that?

PN41

THE VICE PRESIDENT: Yes, Mr Anderson?

PN42

MR ANDERSON: There were certainly other documents between Ms Mayne's letter and 17 April which would clear up in your mind why that action was taken, that has yet to be put to you.

PN43

THE VICE PRESIDENT: Can you just briefly outline the nature of what those documents disclosed?

PN44

MR ANDERSON: Certainly, Ms Zachariou wrote to me seeking clarification of her position at a later stage. I responded to that around February. In the intervening period also there was a proposition put to Ms Zachariou as to where she was going to be employed for the remainder of her contract. In March we got a letter from her solicitor saying that she demanded a redundancy payment after the programme she was working on finished, that really indicated to SBS that Ms Zachariou wasn't interested in moving to the position that we offered her and it would have been - - -

PN45

MS MAYNE: Can I just intervene, she also told her manager that she felt that the work was beneath her so she very clearly stated that she was not interested in the alternate work that SBS was offering.

PN46

THE VICE PRESIDENT: So your contention is that what's in fact occurred has been a repudiation of the contract of employment by her.

PN47

MR ANDERSON: Yes.

PN48

THE VICE PRESIDENT: Which repudiation you have accepted.

PN49

MR ANDERSON: That's right and paid out the remainder of her contract. We didn't unilaterally terminate her because she would not take up the role that was offered.

PN50

THE VICE PRESIDENT: There is a certain tension from a legal perspective between a contention of repudiation which is accepted, that is a breach of the contract or - that's not - repudiation of the contract which is accepted which brings the contract to an end and the notion of giving notice of termination which is a termination at the initiative of SBS as distinct from a termination at the initiative of the employee which is what's involved in a repudiation and paying out the contract. There's a certain inconsistency between those two positions. Now, that no doubt may be explained on the basis of a mistaken understanding of what the contractual effect of the various actions of the parties was but as a matter of contract law that tension is there.

PN51

If Ms Zachariou was offered alternative work as a producer under her contract and she refused it such as to amount to repudiation of contract then that is her bringing the contract - that's bringing the contract to an end at her initiative and comes to an end upon acceptance of that repudiation if that be a correct characterisation of what's occurred. On the other hand, what SBS did was rather than accept her repudiation which would have involved only paying her to the time of the acceptance, SBS has sought to terminate the contract on its initiative and has paid her out so that tension remains and the legal consequences of those matters is a matter for debate. Now, was that the substance of this additional information that you wanted to identify, Mr Anderson?

PN52

MR ANDERSON: That and the basic dispute was whether or not she was an ongoing employee or a specified period employee and the information contained in those letters was clearly put SBS position that she was a specified period employee.

PN53

THE VICE PRESIDENT: Well, it seems to me that the real dispute between the parties is going to come down to - I mean there will be a dispute about - presumably a dispute about the correct legal characterisation of the events that occurred earlier this year but if on a correct analysis Ms Zachariou's conduct did not amount to a repudiation which was also accepted by SBS as such then the position will be as I indicated before, again, all this is provisional and subject to argument but it will be that the last and the concluding paragraph in the letter of contract is unmistakable and unambiguous and that is that the contract is a fixed term contract which will only be terminated by SBS for misconduct or breach of the guidelines neither of which has occurred in which case as a matter of law that termination was invalid or the purported termination was invalid and her employment in fact continues through to the end of the term of the contract which would mean if all of that be correct and, again, I emphasise this is on a provisional basis that the argument would become, well, what is the consequence of her employment having continued through to 30 June or continuing through to 30 June, that is the termination not having been effective and that then gives rise to the arguments under clause 3.3.5 and 3.3.6.

PN54

In terms of taking the matter forward, it seems that it's going to be necessary to list the matter for argument. I'm satisfied at the moment that there is a dispute that arises properly under section 170LW subject to the question of whether or not the intermediate steps in clause 27.2 have been followed, that is the steps between clause 27.2.2 and clause 27.2.5. Of course, failure to comply with one or other of those steps merely gives rise to a discretion in the part of the Commission to decline to deal with the application until such steps have been complied with but putting that really which is a procedural matter aside, there is a substantive issue for argument under section 170LW it seems to me. I'm happy to be persuaded to the contrary but that's my provisional view and in those circumstances it would seem appropriate to list the matter so such argument as is necessary can occur.

PN55

I should say that I'll require persuading, Mr Anderson, that as a matter of correct legal analysis, Ms Zachariou is to be classified as a former employee as of today and in the period to 30 June. I would require persuading that the dispute resolution procedure is somehow render nugatory or no longer relevant or applicable because she ceases to be a former employee if that be the correct conclusion when it was triggered at a time when she was in fact an employee. I am particularly unattracted by the suggestion that the matter should - as an exercise of discretion the Commission should say it should be dealt with under part 6(a) when it seems clear on the face the Commission has no jurisdiction to deal with it under part 6(a), that would seem to me to be the proper exercise of discretion to assert that the matter should be deal with in a way where it is known in advance there is no remedy available.

PN56

So far as the substantive issue is concerned, assuming we get to it and that, of course, is subject to argument I have an open mind and it really rather depends upon the proper construction of particular terms in clauses 3.3.4, 3.3.5 and 3.3.6 of the certified agreement and I suspect that they are matters which would probably need to be resolved by reference to extrinsic evidence, that is what documents passed between the parties and what discussions occurred which bear upon the meaning to be given to the terms position or role in 3.3.5 and the meaning of the phrase single job performing the same duties and essentially that comes down to whether or not it is classified as Ms Zachariou's job and duties are defined by reference to producer of a carpet or simply defined by reference to producer. If it is producer of a carpet then she will not have completed three years in a single job performing the same duties. If it's producer at band 5 then come 30 June - assuming the other arguments be correct, she will have been a producer who has completed three years in a single job performing the same duties and subject to arguments about the effect of the acting positions that she's undertaken in the meantime.

PN57

I don't know what the intrinsic evidence is likely to reveal in relation to the prior construction of those terms and phrases. The parties will know that because they all have access to the documents and the persons involved in the discussions that were antecedent to these clauses being introduced into the agreement but this is certainly a matter where each side is exposed to a prospect of losing the ultimate argument and it's a matter where the parties could usefully entertain the idea of a commercial settlement as a way of resolving the matter. There will be time and money and trouble spent on both sides involved in resolving this dispute and as I say it seems to me at the moment that both sides are at risk depending on the nature of the intrinsic evidence. There are certainly respectable arguments both ways in terms of the proper characterisation of position or role in clause 3.3.5 and the meaning of the phrase, "single job performing the same duties" in clause 3.3.6. If that be correct then it would be commercial for both sides to consider compromising which would mean Ms Zachariou would not get the redundancy money that she wishes to claim to the full extent but equally it would mean SBS would be compromising by paying some portion of the redundancy money.

PN58

Now, those are nothing more than observations which may or may not appeal to the parties. It is a matter for you as to whether or not you seek to pursue negotiations. My job is to hear and determine the application that's before me in accordance with the Act and I will do that unless the parties are able to reach a compromise. Is there anything else that either party wishes to put on the record before we look at a date?

PN59

MS FELTHAM: Not on my behalf.

PN60

THE VICE PRESIDENT: Ms Mayne, Mr Anderson?

PN61

MS MAYNE: Your Honour, I'd just like to foreshadow that SBS would be seeking leave to be represented at the hearing.

PN62

THE VICE PRESIDENT: I can't imagine - well, I can understand that that's a position that SBS would adopt and having regard to the fact that there are technical contractual arguments that bear upon the proper outcome of this matter I would regard it as a reasonable position for SBS to be adopting. Would you be opposing a grant of leave, Ms Feltham?

PN63

MS FELTHAM: I think it's unnecessarily adversarial given that it's supposed to be a sort conciliatory process.

PN64

THE VICE PRESIDENT: Well, if I might say so, the CPSU has adopted a fairly adversarial position in relation to this dispute. From what I've said so far it is my view that the adoption of such a position is not without some justification. Your written statement identifies the relevant term of the contract and the unqualified assurances of Ms Mayne in her letter of December last year which would give the union a sense that its member is being treated in a less than fair manner. I'm more than happy - indeed I'd be delighted to try and foster a settlement of the matter but I can't in good faith urge or recommend the union to capitulate nor can I in good faith recommend to SBS to capitulate. For the reasons I've outlined, there are good reasons why, it seems to me, the issue falls for consideration of an application of 3.3.4 through to 3.3.6 and if that be so then SBS is exposed to a risk of losing depending upon what the proper construction of those phrases is.

PN65

When questions of construction arise and when questions of repudiation of contract arise, they give rise to technical legal issues and it's quite understandable that parties would seek to have expert legal assistance in relation to those technical legal issues. In any event, if Ms Feltham is disinclined to consent to leave then that would be a matter that would have to be argued on the next occasion but having said that it seems to me that this is probably a matter that has some broader importance because, as I understand it, Ms Feltham, the union - this is something of a bugbear of the union, isn't it, the use of specified period contracts.

PN66

MS FELTHAM: That's correct.

PN67

THE VICE PRESIDENT: And the proper application of these clauses in the agreement is something which has been cause for ongoing dispute between the parties, is that not correct?

PN68

MS FELTHAM: That is correct.

PN69

MS MAYNE: Your Honour, I have to say that this is the first time I understand that this has ever been raised. The application of both clauses has not been raised, to my knowledge, with SBS.

PN70

THE VICE PRESIDENT: Okay, I'm endeavouring to try, Ms Mayne, articular to Ms Feltham the reasons why she should be adopting a favourable attitude to consenting to a grant of leave and in the alternative seeking to identify reasons why there are issues of broader importance that would justify a grant of leave in the face of the opposition of the union. Your observation there tends to cut that latter attempt. Ms Feltham, would you just consider your position before the next occasion as to whether or not you wish to actively oppose a grant of leave for SBS to be represented by someone who is legally qualified.

PN71

MS FELTHAM: What was that?

PN72

THE VICE PRESIDENT: Could you consider your position as to whether or not you wish to actively oppose a grant of leave to SBS to be represented by somebody who is legally qualified.

PN73

MS FELTHAM: Sorry, are you saying do I wish to consider that or?

PN74

THE VICE PRESIDENT: No, I'm asking you to consider it. SBS has indicated that they wish to be represented presumably by a solicitor or a counsel. In order for that to occur leave has to be granted. The grant of leave is governed by section 43. Leave will be granted by consent, if you consent to it otherwise if you do not consent to it then there has to be an argument as to whether or not leave will be granted or not the occasion arises to grant leave under section 42 sub section (3) paragraph (b) or (c). I must say my present inclination is that SBS can only be adequately represented by - given the technical legal arguments that I've canvassed they can only be adequately represented by somebody who has got those relevant qualifications.

PN75

MS FELTHAM: I have no objection then.

PN76

THE VICE PRESIDENT: Okay, do you want to organise between yourselves and my associate a convenient date or do you want to try and organise one now?

PN77

MS FELTHAM: We can organise that at a later date between your associate.

PN78

THE VICE PRESIDENT: Are you happy with that course, Ms Mayne?

PN79

MS MAYNE: Yes, I'm happy with that, your Honour.

PN80

THE VICE PRESIDENT: You would obviously like to speak to your solicitors and ascertain their availability no doubt.

PN81

MS MAYNE: We've actually got dates.

PN82

THE VICE PRESIDENT: Okay, fine, if you've got dates, Ms Feltham, can you set a date now or do you need to speak to others.

PN83

MS FELTHAM: I would need to speak to others.

PN84

THE VICE PRESIDENT: Okay, I'll have my associate - Ms Feltham, can you make your inquiries and come up with some dates and ring my associate and then she can communicate with Ms Mayne or if you want to communicate with Ms Mayne then that would be fine.

PN85

MS FELTHAM: Okay, I can do that.

PN86

THE VICE PRESIDENT: Thank you. Would it be of any assistance if a transcript of this were made available to the parties when it's prepared which will be in the next day or two?

PN87

MS FELTHAM: Yes, it would.

PN88

MS MAYNE: Yes, your Honour, thank you.

PN89

THE VICE PRESIDENT: Fine, I'll have my associate fax a copy of the transcript when it's prepared to each of the parties. Unless there's anything further, I'll adjourn the matter to Friday, 16 May at 9.30 at the Commission. I do that only because the Act requires matters to be adjourned to a specified date and time and it doesn't allow an adjournment indefinitely and that date will be moved to suit the convenience of the parties once they've consulted with each other and my associate.

PN90

MS FELTHAM: Thank you, your Honour.

PN91

THE VICE PRESIDENT: The matter is now adjourned to Friday, 16 May at 9.30 am.

ADJOURNED UNTIL FRIDAY, 16 MAY 2003 [4.05pm]