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Australian Industrial Relations Commission Transcripts |
AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825
Suite 25, Trafalgar Centre 108 Collins St HOBART Tas 7000
Tel:(03) 6224-8284 Fax:(03) 6224-8293
TRANSCRIPT OF PROCEEDINGS
O/N 1511
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
DEPUTY PRESIDENT LEARY
C2003/6254
AUSTRALIAN WORKERS UNION -
TASMANIAN BRANCH
and
CIVIL CONSTRUCTION CORPORATION
Notification pursuant to section 99 of the Act
of a dispute re entitlements of R. Davidson, C. Haines
and K. Ponting re the benefits of clause 9.5 and 23
of the certified agreement
HOBART
9.42 AM, MONDAY, 20 DECEMBER 2004
Continued from 1.12.04
PN1238
THE D.PRESIDENT: There are no changes in appearances?
PN1239
MR FLANAGAN: No.
PN1240
MR ZEEMAN: No.
PN1241
THE D.PRESIDENT: What is the agenda for this morning?
PN1242
MR ZEEMAN: I understand that Mr Flanagan has finished his case. We would seek to call Ms Jarvis by phone. Now, I indicated to the Commission I was going to provide a statement prior to this morning. I apologise, I failed to do that but perhaps if I could hand up a copy?
PN1243
THE D.PRESIDENT: Thank you.
PN1244
MR ZEEMAN: I have provided a copy to Mr Flanagan. Ms Jarvis has a copy of the statement in front of her. She also has a copy of A3. I have also provided Ms Jarvis with a number of documents from the bundle marked as A2. They are not documents that I will seek to refer Ms Jarvis to but I understand Mr Flanagan may have some questions in regard to those. So what I propose, Deputy President is to have Ms Jarvis give evidence by telephone and, simply, I will be putting her statement to her. That, essentially, will be her evidence. There will be one or two other matters that I will need to address and then I will be handing it over to Mr Flanagan. I have Ms Jarvis' direct number which is 63321837. I should indicate Ms Jarvis has a meeting at 10 o'clock, but - - -
PN1245
THE D.PRESIDENT: Don't rely on that.
PN1246
PN1247
THE D.PRESIDENT: Mr Zeeman, thank you.
PN1248
MR ZEEMAN: Thank you, Deputy President.
PN1249
Ms Jarvis, it is Justin Zeeman. Could you please tell the Commission your full name, address and occupation?---Kylie Louise Jarvis (address supplied) and I am currently policy and communications officer with Tasmanian Farmers and Graziers Association.
PN1250
Were you previously employed by Civil Construction Services Corporation?---I was.
PN1251
Now, before you I understand that you have a statement which is numbered paragraphs 1 through to 9. Is that correct?---That is correct.
PN1252
Is that a true statement of yours?---It is.
PN1253
If I could formally tender that statement, Deputy President?
PN1254
PN1255
MR ZEEMAN: Ms Jarvis, if I could just very briefly take you to paragraphs 2 and 4? In both of those paragraphs reference is made to a series of letters. Do you agree with that?---I do.
**** KYLIE LOUISE JARVIS XN MR ZEEMAN
PN1256
Have you had the opportunity to look at those letters recently?---I have, this morning.
PN1257
Yes, thank you. Nothing further. Mr Flanagan now has some questions for you.
PN1258
THE D.PRESIDENT: Thanks, Mr Flanagan.
PN1259
PN1260
MR FLANAGAN: Ms Jarvis, if I can take you to point 7 of your statement, it says:
PN1261
At this time I was aware that it was likely the corporation was to be sold. Accordingly, I turned my mind to the effect of clause 9.5 of the Civil Construction Corporation Enterprise Agreement 2002.
PN1262
Can you tell me, at that time were you aware of the date on which the corporation would be sold?---No, I was not.
PN1263
Now, I have asked Mr Zeeman to provide you with extracts of a document here known as A2. Do you have that extract with you?---If you could just let me know what A2 is?
PN1264
Yes, sure. There should be a part of what you are provided with is a document headed up Civil Construction Corporation Rights of Employees and it has a Mr Fletcher asking a question?---Yes, I have that in front of me.
**** KYLIE LOUISE JARVIS XXN MR FLANAGAN
PN1265
Okay. Now, if you just have a read of the third paragraph?---Yes, I have.
PN1266
Now, if I can take you about half-way through, it says:
PN1267
Further, it was announced on 11 August through a letter to employees from Works Infrastructure that its subsidiary Downer EDI have purchased the CCC; that if a sale agreement is reached it was their intention to offer jobs to 135 of the 140 employees.
PN1268
Do you see that part?---Yes, I do.
PN1269
Could you tell me the six persons the then treasurer was referring to as persons who would not be offered employment?---I could assume that it would be the CEO, the deputy CEO, Renee Ducket, myself, possibly Chris Absolom, and there's obviously another manager that I'm missing out from the equation.
PN1270
But can you confirm that they were managers?---My understanding was they were executive managers.
PN1271
So when it refers to the 135 employees that would be offered employment, given that Mr Haines, Mr Davison and Mr Ponting were not managers, it is reasonable to propose that they would have been the people offered employment; is that right?---I think that would be a reasonable assumption/
PN1272
Now, if I can take you to a document dated 11 September 2003 from Dr Crean and it is headed up "The Sale of the Civil Construction Services Corporation"?---I have that document in front of me.
PN1273
Do you recall receiving that document in the mail at the time that the sale was announced, as an employee?---I can't recall. I got a lot of information. I may have got it.
**** KYLIE LOUISE JARVIS XXN MR FLANAGAN
PN1274
If you can go to a letter on the letterhead of the Civil Construction Corporation, it was signed by Mr Gostello?---Yes.
PN1275
Now, if you can just have a read of - well, if you can read paragraph 2 of the document to us just to make sure you have got the right document? Can you read the second paragraph in that letter?---Yes:
PN1276
Recently he received a letter from Works Infrastructure indicating its intention.
PN1277
Yes, that is it?---Yes.
PN1278
Now, can you tell me who received that letter?---The letter from Works Infrastructure?
PN1279
No, no, this is the letter from the Civil Construction Corporation, the one that you are actually reading?---The one that I've actually got?
PN1280
Yes?---I would assume, all other employees other than those who weren't being offered employment by Works Infrastructure.
PN1281
So all of the employees, including Mr Ponting, Mr Haines and Mr Davison, would have received that letter?---I would assume so, yes.
PN1282
Now, you are familiar with the work that was being performed by Mr Davison, Mr Ponting and Mr Haines, aren't you?---They were road maintenance workers based at Derby, Smithton and Fingerpost.
PN1283
Can you tell us the nature of the work they were performing?---Road maintenance work. It was varied; whether it was traffic furniture, bitumen work, those sort of things.
**** KYLIE LOUISE JARVIS XXN MR FLANAGAN
PN1284
Would it be fair to describe that work as of a nature or character which was generally performed by the corporation as part of its core business?---Yes, that would be fair.
PN1285
So would it be fair to say that the work that they were involved with would not be described as additional support for a particular project?---Additional support?
PN1286
Yes?---No, no.
PN1287
You assert that it is, do you?---No, no. I say it's not. We had contract labour as additional support.
PN1288
I see. So you had your own core work-force, including Mr Ponting, Mr Haines and Mr Davison?---That's correct.
PN1289
Then you had supplementary labour arrangements. Can you tell us who provided the supplementary labour arrangements?---There was a number of different contract providers.
PN1290
What sort of supplementary labour would they provide?---The same sort of work - road maintenance work.
PN1291
So, in the case of the three men that we have referred to and that are the subject of these proceedings, it would be fair to say that they were not engaged with road or bridge construction; would that be right?---Construction?
PN1292
That is right?---Not that I am aware of.
PN1293
And in terms of their role, they weren't engaged for a major maintenance project?---For a maintenance project?
**** KYLIE LOUISE JARVIS XXN MR FLANAGAN
PN1294
Yes?---They would have been engaged for the actual project.
PN1295
While they were engaged for the maintenance contract, weren't they?---That's correct.
PN1296
But correct me if I am wrong, in addition to the northern road maintenance contract, the corporation would tender for specific additional maintenance requirements during the life of that contract, wouldn't they?---With other organisations, that is correct.
PN1297
Now, Ms Jarvis, I want to read to you an extract from the enterprise agreement from 1999, which was in force at the time that Mr Ponting and Mr Davison were engaged on their contracts referred to in your point 4 in your statement?---Yes.
PN1298
If I can just read this to you:
PN1299
...to provide additional support for a project (whether associated with a road or bridge construction or major maintenance project or an administrative or management project) -
PN1300
Now, that doesn't describe the work performed by Mr Ponting, Mr Haines and Mr Davison, does it?---Could you read that again, sorry?
PN1301
Sure:
PN1302
...to provide additional support for a project (whether associated with a road or bridge construction or major maintenance project or an administrative or management project) or other work of limited duration.
**** KYLIE LOUISE JARVIS XXN MR FLANAGAN
PN1303
?---Depends whether there's additional support on. I'm not aware of what the definition is in that enterprise agreement.
PN1304
Okay. Now, there has been evidence in these proceedings - and, in fact, it is contained within A3, and I believe Mr Zeeman has provided you with a copy of a document titled A3?---Is that dated 15 July 2002, Mr Chris Haines?
PN1305
That is right?---Yes.
PN1306
Can I take you through to the fifth page of that document?---Yes.
PN1307
You will see that there is a handwritten reference to Mr Haines dated 30 June '03?---That's correct.
PN1308
And it has a figure of $10,208?---Mm hm.
PN1309
Is that your handwriting?---That is.
PN1310
Now, we have got a little box under that which identifies some figures of 5623 plus 2812 for each completed year of service. Can you tell us what those figures relate to?---The $10,208 would be the redundancy payment calculated at 30 June for Mr C. Haines as calculated by our HR staff and the 2002/2003 tax-free limit for an ETP has been provided by our HR staff for each eligible termination payment bona fide redundancy. The first 5620 is tax free, plus 2812 for each completed year of service.
PN1311
Now, the methodology for calculating those payments were contained within the Civil Construction Corporation enterprise agreement which was in force at the time that the corporation was sold. It contains a number of different scales, if you like. Now, I know you don't have it with you, but I think you would have a reasonably good recollection. Do you recall that there was a distinction drawn between employees engaged prior to the registration of the new agreement compared to employees engaged after that?---That is correct.
**** KYLIE LOUISE JARVIS XXN MR FLANAGAN
PN1312
Right. Do you recall that it was intended that new employees - and I use the words "new employees" - would have different arrangement to existing employees?---That is correct.
PN1313
Now, in terms of the figure which is identified in A3 that I have just taken you to in respect of Mr Haines, if that based on the arrangements which applied to employees who were new employees or based on arrangements which applied to people that were engaged prior to the enterprise agreement being registered?---Prior to - I don't whether it was the enterprise agreement being registered but it was prior to, I think, 15 August 2002.
PN1314
That is a very good recollection?---I've got the enterprise agreement in front of me.
PN1315
Okay?---Yes, it's on the website.
PN1316
If I had of realised that, it might have made it a bit easier, actually, but, sorry?---That's okay.
PN1317
All right. So the methodology which was applied to Mr Haines was actually the methodology identified in clause 23.2.1?---That is correct.
PN1318
So if we also go up the page - - -
PN1319
THE D.PRESIDENT: Over the page of the agreement or the bundle of documents?
PN1320
MR FLANAGAN: I am sorry, I am back in A3, Deputy President.
**** KYLIE LOUISE JARVIS XXN MR FLANAGAN
PN1321
THE D.PRESIDENT: Yes.
PN1322
MR FLANAGAN: If I can take you to the third last page of A3?---Yes?
PN1323
Do you have that?---I do, letter dated 20 June 2003.
PN1324
No, actually, it should be a similar advice about redundancy payments to Mr Ponting?---Is it dated 18 March 2002? No, I'm sorry, I'm with you, yes. It's actually got:
PN1325
K. Ponting, redundancy as at 30 June, $9744 -
PN1326
that is right. Now, I take it, likewise, the methodology - well, can you tell us what the figure is?---$9744.
PN1327
And was that similar to Mr Haines based on the methodology in 23.2.1?---That is correct.
PN1328
No further questions, thank you, Deputy President.
PN1329
THE D.PRESIDENT: Thank you. Any re-examination?
PN1330
PN1331
MR ZEEMAN: Ms Jarvis, if I can take you to paragraph 8 of your statement?---Yes.
**** KYLIE LOUISE JARVIS RXN MR ZEEMAN
PN1332
That reads as follows:
PN1333
I'm considering clause 9.5. I was concerned that if further contracts of employment were offered to Mr Haines, Mr Davison and Mr Ponting, this may expose the corporation further liability. At the same time, however, I wanted to give Mr Haines, Mr Davison and Mr Ponting an opportunity to work as opposed to engaging contract labour. Accordingly, I utilised the fixed-term employment provision contained at clause 8.3 of the enterprise agreement.
PN1334
?---That is correct.
PN1335
Why then did you give Mr Ponting a copy of that note that Mr Flanagan has just referred you to setting out a potential redundancy payment?---That figure that we gave them was before I considered that point there. That figure was given to them when we did depot visits, which was prior to coming back into the office and looking at when their contracts actually terminated.
PN1336
So it was an oversight?---Yes.
PN1337
What about in respect to Mr Hines? Mr Flanagan has referred you to a similar document. Was that also an oversight?---It must have been, yes.
PN1338
Can you recall giving Mr Davison a similar document?---Can't specifically, but we would have done. We gave it to every person we visited as part of the depot visit.
PN1339
And if you had done that, would that have also been an oversight in respect to Mr Davison?---Would have to have been, yes.
**** KYLIE LOUISE JARVIS RXN MR ZEEMAN
PN1340
Did you at any stage indicate either to Mr Haines, Mr Davison, or Mr Ponting that they had an expectation of continuing indefinite employment?---No, I would not have done, not that I can recall.
PN1341
Nothing further, thank you, Deputy President.
PN1342
THE D.PRESIDENT: Can I just ask a question? Mr Jarvis, the work performed by your core work-force and any supplementary labour, is it all the same?---Predominantly, yes.
PN1343
Did the corporation do anything other than road maintenance and that sort of work?---The corporation does do construction as well as maintenance, which is a different field.
PN1344
And it could be a mixture of core labour and supplementary labour?---That's correct.
PN1345
Okay. Do you want to raise anything after that?
PN1346
PN1347
MR FLANAGAN: If I can just explore that issue with you there, Ms Jarvis, just so that it is clear? Can you explain to us, in terms of road maintenance, the major contract was contract 997, I think, is what it was referred to; is that right?---There was contract 694 and contract 695. They were the north-east and north-west contracts and they went on to be combined into contract 994 in about June 2003, I think.
PN1348
Okay. So contract 994 was the core business of the corporation?---Definitely, yes.
**** KYLIE LOUISE JARVIS FXXN MR FLANAGAN
PN1349
Now, from time to time, would there have been additional one-off maintenance projects which you would have been asked - or which you would have tendered for within a zone covered by the contract 994?---Yes, they would do work for, for example, Forestry Tasmania or local Government.
PN1350
In that situation, would it be that that would be work of a limited duration?---Yes, they were normally specific projects.
PN1351
Now, they were a very distinct sort of project to a core maintenance project, weren't they?---That's correct.
PN1352
And the construction projects, were they likewise work were additional to your core work?---They were another core component but they weren't as substantial as maintenance from a monetary point of view.
PN1353
When you say "a monetary point of view" a monetary point of view for the corporation?---That's correct, like, the actual revenue from maintenance compared to construction.
PN1354
Right. Nothing further.
PN1355
THE D.PRESIDENT: Just to take it further, Ms Jarvis, can you tell me in clause 8.3 of the agreement and the three individuals, the subject of this application, which purpose were they put on fixed-term contracts for? Is it specialised services, additional support or to replace employees?---I'm just finding that clause. I couldn't tell you specifically for what purpose at the start, like, the 2002 letter. I wasn't actually involved in that letter so I couldn't actually comment on that. But my understanding, based on reading the letter, would be that they were only there specifically for the term of the contract, contract 694 or 695 - specifically there for the project while we had that work.
**** KYLIE LOUISE JARVIS FXXN MR FLANAGAN
PN1356
Sorry?---They were only there specifically while we had that work.
PN1357
PN1358
MR ZEEMAN: Ms Jarvis, if I could just ask you one more question about this? When you describe contract 694, 695 and then subsequently contract 994 as being the core part of the corporation's maintenance business, is it correct to say it was one aspect of the business?---It was one aspect. Like I've mentioned previously, construction was another aspect and we had plant contracts and those sort of things as well; so it wasn't only one aspect but it was the biggest revenue component.
PN1359
In accordance with paragraph 9 of your statement, it was for a limited duration; that is, for the duration of the actual contract?---That is correct.
PN1360
You have indicated that there were other projects t hat the corporation engaged in. They also form part of the overall business of the corporation in conjunction with these contracts; is that correct?---That would be correct.
PN1361
Thank you. Nothing further.
PN1362
THE D.PRESIDENT: All right.
PN1363
PN1364
THE D.PRESIDENT: Mr Flanagan?
PN1365
MR FLANAGAN: Deputy President, perhaps if can just go back to A1 in these proceedings?
PN1366
THE D.PRESIDENT: Sorry, to?
PN1367
MR FLANAGAN: To A1, which are the contentions as to fact. I just want to address the relevant aspects of that. One and two were agreed between the parties.
PN1368
THE D.PRESIDENT: Yes.
PN1369
MR FLANAGAN: Point 3, I don't know that a lot turns on it, but we had referred to a statement issued by the treasurer in March 2003 and, what we had, in fact, done in A2 was provide Mr Zeeman with a copy of an extract of Hansard, which I took Ms Jarvis to.
PN1370
THE D.PRESIDENT: This is where Mr Fletcher was asking something.
PN1371
MR FLANAGAN: That is correct.
PN1372
THE D.PRESIDENT: Yes.
PN1373
MR FLANAGAN: Now, we have, in fact - and that was simply to demonstrate that that is when the treasurer made the announcement and subsequently we have able to find the actual statement to which we were referring, so I would just seek to tender a copy of that statement.
PN1374
PN1375
MR FLANAGAN: If I can take you to the second page of A4, you will see there Dr Crean said:
PN1376
Workers' entitlements would be fully protected and that there would be few, if any, job losses.
PN1377
He continues in the next paragraph:
PN1378
To protect the 131 jobs in the Civil Construction Services Corporation the Government has agreed to extend the corporation's northern road maintenance contract for a further three years.
PN1379
That is not significant in the context of these proceedings, the fact that 131 jobs were publicly identified, not only on the Hansard, but also in this Government release they would be protected; and, further, that the northern maintenance contract had been extended for a further three years. He, further, over on the last page of A4 under the heading "Employment Issues" at the second paragraph, said:
PN1380
The Government's focus will be to ensure to the extent possible, continuity of staff and maintenance of existing employment conditions under new ownership.
PN1381
So, in the context of contention 3, we would simply say to you that we have demonstrated the statement and taken you to the issues which were important. The union's contention 4 was agreed between the parties. The union's contention 5 was not agreed and, essentially, the proposition there was that Mr Zeeman had sought the agreement of the union that the reference to employees was a reference to employees engaged in clause 8.1. At the time, the union's contention was that it was a reference to schedule B which, in fact, was the road maintenance employees, if you like.
PN1382
We don't press that proposition. We simply say that in your recommendation of 30 August, when you referred to employees in paragraph (c), it referred to all employees of the corporation. The union's contention 6 was agreed. The union's contention 7 was not agreed, but we say in relation to that the union's version of the conduct of the parties is contained in the transcript. I don't say that anything turns on that. It is simply a contextual fact of the dispute that is before you.
PN1383
The union's contention 9 identifies the statement of the treasurer on 30 September. I have referred to that Hansard already. It is contained in A2. We say that that contention is made out. The union's contention 10, again, we say that is a matter of public record and is dealt with in the decision by his Honour, Vice President Ross. I am not sure if I have provided you with a copy of Vice President Ross' decision but, if not, then I seek to tender a copy now.
PN1384
THE D.PRESIDENT: Yes. No, I don't think I do have a copy.
PN1385
MR FLANAGAN: You do?
PN1386
THE D.PRESIDENT: No, I don't.
PN1387
MR FLANAGAN: You don't?
PN1388
THE D.PRESIDENT: Not that I can see. Thank you.
PN1389
MR FLANAGAN: We simply submit that Vice President Ross' decision confirms the contention of the union in point 10. It also confirms the contention of the union in point 11, the union's contention in point 12, the union's contention in point 13, the union's contention in point 14, the union's contention in point 15, the union's contention in point 16. While we are on the union's contention 16, which is an extract of the findings at paragraph 97, I would take you, Deputy President, to page 18, which has that extract. There is a finding there by Vice President Ross in subparagraph 2.3 on page 18, if I can take you to that; and if I can take you to the fifth last sentence in that finding, the Vice President says:
PN1390
Hence, it was known that if an employee chose to be made redundant, they would be paid the standard redundancy entitlements applicable in the event of an involuntary redundancy in accordance with the corporation's practises.
PN1391
That is a significant finding in the context of these proceedings. Further, in subparagraph (4) - if I can call it that - at the bottom of that page, he states:
PN1392
During the site meetings held between 8 and 19 July ...(reads)... chair of the EBA negotiating committee.
PN1393
Now, in respect of that second finding by Vice President Ross, we have got the additional information provided by Ms Jarvis today proposing that there was an administrative error in providing people with figures which related to the quantum of redundancy payments which would be made out which would be available to them. With respect, that purported administrative error was never identified and there is no evidence that it has ever been identified to those employees who were allegedly subject to the oversight. But, in any event, we say that the union's contention is borne out by the Ross decision, as was the union's contention at point 17.
PN1394
Now, in terms of the union's contention at point 18, I am not sure that anything in particular turns on it but it says:
PN1395
The proceedings before the Commission seeks a finding that Mr Chris Haines -
PN1396
and it continues on. The corporation's position is that they don't agree with it as an agreed fact. We would simply seek to amend it, to say the proceedings before the Commission are initiated by the union to pursue a finding. It is simply to say that we are seeking a particular claim and we don't expect the corporation to say, yes, they agree that you should find that way, but I think they can recognise that, in fact, that is the nature of the application which is before you.
PN1397
THE D.PRESIDENT: Well, as I understand it, it is a section 111AA application.
PN1398
MR FLANAGAN: That is right, in accordance with the disputes procedure.
PN1399
THE D.PRESIDENT: Yes.
PN1400
MR FLANAGAN: The union's contention 19 has been agreed. Now, in relation to the union's contention in point 20, the only issue between the parties, if you like, in terms of, as a matter of fact, what were the arrangements in place with, I think, in this case, Mr Haines, was whether or not there was a break in service between the first and second letters of employment from the corporation. I would simply submit to you that the evidence of Mr Haines in these proceedings on this point were very clear and that was that there was no break in the service or employment between the letters of employment which they were given by the corporation; that is, that it was continuous employment. That was his evidence.
PN1401
We would simply say that our contention 20 has been made out by the evidence. Contention 21 is agreed, as you will see. Contention 22, the same as Mr Haines. The only issue between the corporation and the union was whether or not there was a break in the service. The evidence of Mr Davison very clearly established that there was not. In contention 23, that was agreed. In contention 24, as was the case with Mr Haines and Mr Davison, the only contention was whether or not there was continuity of service and we say the evidence of Mr Ponting demonstrated that there was no break in the employment.
PN1402
In relation to the union's contention 25, we simply say that that is borne out by the Ross decision establishes that. In relation to contention 26, we say that the evidence of Ms Jarvis today has demonstrated that contention, together with - and I think specifically she was taken to the letter from the corporation. We also rely on the finding of his Honour, Vice President Ross in respect to that contention. In relation to contention 27, which is just concerned with the quantum which was identified to employees as being made redundant, we rely on the evidence of Ms Jarvis this morning.
PN1403
In relation to the union's contention 28, the union relies on exhibit A2 in these proceedings in the correspondence addressed to Mr Davison. In relation to the union's contention 31, the union relies on exhibit A2. In relation to the union's contention 32, we rely on the evidence and the Works Infrastructure correspondence found in A2. In respect to contention 33, we rely on the statement of the treasurer dated 21 March and the Hansard from Parliament of 30 September which indicated all 131 persons, other than the six managers who were not required, but all other 131 employees would be offered employment and would have ongoing employment with Works Infrastructure.
PN1404
In relation to point 29, we say that is demonstrated by A2, as is the union's contention 30, which is also contained within exhibit A2 in these proceedings. The evidence of Mr Ponting and Mr Davison confirm that those documents were forwarded to Works Infrastructure. I think that deals with the contentions as to fact, Deputy President. Now, that is not insignificant because there is common ground between the corporation and the union and that common ground is that, essentially, the matter before you today is determined on the facts.
PN1405
There is not significant disputation, I don't think, between the corporation and the union in relation to the law which applies but, nevertheless, I will take you through the authorities which the unions say the Commission should have regard to in respect to this matter. I would seek to tender a copy of some of those authorities. Perhaps one at a time might be the most appropriate approach. The first is the decision of Northrop J in Cooper v Darwin Rugby League Incorporated. I am sure you are quite familiar with it, Deputy President. If I can just take you to the second page, page 241, on the right-hand side, the fourth paragraph down, the second last paragraph on the page, about half way down it says:
PN1406
In my opinion, the contract of employment is for a specified time but can be terminated before the expiration of that period by either party on notice or by the respondent as employer for the misconduct of the applicant as employee on this construction of the contract of employment the applicant is not a worker engaged under a contract of employment for a specified period of time.
PN1407
Now, the relevance of that comment and finding by his Honour is this: in the initial set of employment letters provided by the corporation to each of the employees affected by these proceedings the corporation very clearly identified termination provisions and the effect of those termination provisions being contained within those letters was to invalidate the proposition that they were fixed-term contracts. So that is the relevance of that decision in the context of these proceedings.
PN1408
The next decision that I take the Commission to is D'Lima v Board of Management of Princess Margaret Hospital. Now, in that particular matter, if I can take you to the fourth page, and if I can take you to page 25 of the decision under the heading Regulation 30B(1)(a), in there it is stated by Marshall J:
PN1409
Ms D'Lima was subject to an award entitlement for two weeks' notice of her termination. In those circumstances, even assuming that each written form represents a stand-alone contract, no one can be certain as to when the contract will expire when it is entered into.
PN1410
Now, the proposition which is contained within this decision is essentially that if a contract does not have a certainty as to when it will come to an end, it is indeterminate. If it is indeterminate, it is not a fixed-term contract. Now, the significance of that in the context of these proceedings is contained within A3. The letters which were provided to Mr Ponting and Mr Davison both state:
PN1411
Your employment will cease one working day prior to the occurrence of a sale event or at the expiration of contract number 994 State Roads Network Northern Tasmania on 30 June 2007 -
PN1412
and it identifies the contract. Now, to the extent that it referred to a particular date when the contract would expire and if the letter was otherwise valid, it could be argued that this provision is determinate; it has a specific date when it comes to an end. We don't accept that it is otherwise valid but, on that point, you could say it is. But you can't say that because it is valid it has a determinate nature because it identifies 30 June 2007. You can't say that that then gives the reference to a sale event, a validity.
PN1413
Now, the evidence of Ms Jarvis was very clear on this. At the time that the second employment letter was provided to the employees she was unaware of a specific time or date when a sale event would occur. So the proposition there, Deputy President, is it was not determinate; it was indeterminate and, therefore, the nature of the employment arrangements on that basis were not fixed-term contracts. The next decision that we would refer the Commission to is Andersen v Umbakumba Community Council, a decision from Von Doussa J. Significantly there, he held at paragraph 30:
PN1414
A specified period of time is a period of time that has certainty about it.
PN1415
And if I can take you further over into the decision to page 126 of the decision, the second paragraph:
PN1416
A contract of employment to run throughout a nominated number of days, weeks or years would be a contract of employment for a specified period of time -
PN1417
as per the reference, Deputy President, to identifying 30 June 1997:
PN1418
If the terms of contract of employment instead of identifying in this manner the period of time during which it is to run provides that it is to run until some future event. The timing of the happening of which is uncertain when the contract is made, the contract will be for an indeterminate period of time.
PN1419
Well, we would simply suggest that that supports the submissions we have made in that regard. The further decision that I would refer you to, Deputy President, is Fisher V Edith Cowan University. In the context of these proceedings, there are several relevant aspects, we would submit, in this particular matter. The first of those appears on page 469 and, at that page, the Full Bench is talking about a recommendation and convention with the ILO, but the observation they make at the bottom of that page is:
PN1420
The recommendation and, therefore, the convention recognised ...(reads)... initiative taken by the employer at the commencement of the contract of employment to reserve the power.
PN1421
Now, the proposition in these proceedings by the corporation is that the employment arrangements came to an end by the effluxion of time by a term having occurred - that is, a sale event - and that brought the contracts to an end. But we submit to you that is not the evidence. The evidence in these proceedings is that in the case of Mr Davison, in the case of Mr Ponting, they provided a written election to the employer in accordance with the enterprise agreement stating that they wanted to take redundancy; and it was that action by them that led to their employment coming to an end, not the contract expiring by the effluxion of time.
PN1422
I think they are they key authorities in the context of what does or does not constitute a fixed-term contract. The other issue which needs to be addressed is, within clause 9.5 of the Civil Construction Enterprise Agreement 2002, as amended, it states - I just have to find it, Deputy President. In 9.5 of the CCC agreement of 2002, it states:
PN1423
In the sale event, an employee who's position with CCC will no longer exist may elect to -
PN1424
and it provides for some options. Now, the reference there is to an employee. It is not a qualified position; it doesn't say "a permanent employee; it doesn't say "a full-time employee" or "a part-time employee"; it says "an employee". If one goes to clause 23 - in particular, clause 23.2 - 23.2 states:
PN1425
The following separation payment shall be made to full-time and part-time employees employed pursuant to clause 8.1 hereof.
PN1426
It then goes on to identify the quantum of the payments. Now, the proposition from the corporation is that, given that these employees, as they assert and we don't accept it, are fixed-term employees, they don't fit the definition within 8.1 They are, therefore, not entitled to the redundancy payments. That is essentially their proposition without putting words in Mr Zeeman's mouth.
PN1427
Now, what we say is that we have to look at this agreement in context. We can't ignore the history of the provision and there appears, on the face of it, to be a provision which specifically addresses what is to occur when there is a sale and then there is a more general provision which applies to redundancy arrangements generally.
PN1428
THE D.PRESIDENT: Doesn't it limit it also to those covered by clause 8.1?
PN1429
MR FLANAGAN: Yes, that is what I am saying. The proposition from the corporation is, if you are not an employee of 8.1 you don't get any payment. That is their proposition. Now, there are several things we say about it, but one thing that we say about it is that clause 9.5 specifically identifies that employees will get the benefits of clause 23. Now, when the actual 9.5 was the subject of the proceedings which were before Vice President Ross, what he found at paragraph 97 of his decision was the mutual intent of the parties at the time the CCC agreement was made was that if an employee elected to be made redundant under clause 9.5, then they were entitled to redundancy payments set out in clause 20(c) of the CCC agreement. An important thing there is, his Honour recognised that the intention of the parties was that people were entitled to the redundancy payments.
PN1430
THE D.PRESIDENT: There was nothing raised before him, though, whether people were part time or fixed-term, was there?
PN1431
MR FLANAGAN: No, that is correct, Deputy President.
PN1432
THE D.PRESIDENT: I mean, the whole thing was spoken in the generic term of employee. There was no definition, yes.
PN1433
MR FLANAGAN: Yes. Now, what we say in that regard, Deputy President, is that this is a situation where there is a specific provision and a situation where there is a general provision and I would seek to tender two decisions in relation to that aspect. Now, Deputy President, I don't pretend to be legally qualified but the decision from the House of Lords deals with what I understand is a rule which is applied at law. If I can take you to paragraph 74, which is on the second-last page of the judgment of the House of Lords? Now, I have to say at the outset I recognise the Commission is not bound by this decision but we do say it should be considered as persuasive on this issue. It states:
PN1434
If, however, there were any prima facie conflict between the general provisions of article 4 and rule 3 ...(reads)... article 4 rule 6 must take priority over article 4 rule 3.
PN1435
That is the fundamental proposition that we are making in respect to this matter. It then continues on a little further down, three lines down.
PN1436
THE D.PRESIDENT: Which takes precedence over which, in your position?
PN1437
MR FLANAGAN: I am sorry. What we are saying is the reference to employee in 9.5 takes precedence over the more qualified definition which is found in clause 23. They simply continue on:
PN1438
I would only add that the -
PN1439
and then they refer to the maximum -
PN1440
As its traditional expression in Latin, indeed, suggests it is not a technical rule ...(reads)... and the usage of language as a medium of communication generally.
PN1441
So we would ask the Commission to keep those comments on board in that respect. If I can take you to the other decision, which I have provided you with, which is a Full Bench of the Industrial Relations Commission in Western Australia, I think? If I can take you to the third last page of that decision; if I can take you to the reasons for the joint decision of the President and Coleman CC, the fourth paragraph down where it states:
PN1442
Where the provisions of a particular Act of Parliament dealing with a particular subject matter -
PN1443
I am sorry, Deputy President, we need to go down a little further - the seventh paragraph where it states:
PN1444
A second statutory proposition argued was that under the maxim ...(reads)... would certainly overcome the special if the maximum were applicable.
PN1445
Clearly, the Commission had jurisdiction in the matter. What this was essentially a debate about was a conflict between the Industrial Relations Act and the health and safety provisions which applied to a particular situation - and what the Commission found was they had specific legislation and that maximum would apply; they, therefore, had jurisdiction. Now, all we are saying to you is, that lends weight to the proposition that in the context of these proceedings the specific reference in 9.5 should take priority over the more qualified reference in clause 23.
PN1446
The other matter that we wish to raise, Deputy President, is I would seek to tender a copy of the Civil Construction Corporation Enterprise Agreement 1999 which is the agreement which predates the 2002 agreement. It is the agreement which was in place at the time that Mr Haines and Mr Davison signed their second employment letters. I would like to take you to page 4 of 19. No, I am afraid I had some difficulties printing this off Wage Net.
PN1447
THE D.PRESIDENT: I am surprised it is still there.
PN1448
MR FLANAGAN: Yes, but I have handwritten in, if you like, the parts that I couldn't get to print. Now, if I can take you to about three-quarters of the way down the page, it says "7.4 fixed-term employment". It says:
PN1449
An employer may be engaged on either a full-time or part-time basis ...(reads)... leave of other similar absence.
PN1450
Now, I simply draw this to your attention because this is the agreement which was actually in force at the time that Mr Haines and Mr Davison signed their second letters of employment. This agreement was in force from 15 August 1999 for a period of two years up until 15 August 2002. So it obviously went for more than two years, it would seem. The subsequent agreement, the one which contains the sale provision, actually took effect from 15 August 2002, some two weeks after Mr Haines and Mr Davison had signed their second letter of employment.
PN1451
Then the restriction, if you like, that arises from the 1999 agreement, which was in force at the time, was that it better defined the situation in terms of fixed-term employment than the 2002 one did by providing specific illustrations of the circumstances in which additional support might be required. Now, in any event, the proposition by the union in this respect is this: the enterprise agreement defined the circumstances - both of them do - in which the corporation was entitled to engage people on fixed-term arrangements.
PN1452
We don't concede that the arrangements in place were fixed-term but what we do say is that, in any event, the evidence in these proceedings from each of the witnesses, including Ms Jarvis, is that the nature of the work that was being performed was work which was concerned with the major road maintenance contract in the north; that it was the core business of the corporation; the most significant revenue unit for the corporation. Now, if one looks to the fixed-term employment provisions, we would submit that the character of the circumstances, the nature of the circumstances where fixed-term employment is authorised, it is clearly designed to deal with circumstances which are not the ongoing day-to-day core operation of a business. That is clearly the nature of the fixed-term arrangement.
PN1453
As I said, the evidence doesn't support the proposition that that is the type of work that these employees were engaged in. It flows from that, Deputy President, that if they are not fixed-term employees and we go back to clause 8 of the 2002 agreement, it very clearly states:
PN1454
An employee not specifically as a casual or fixed-term employee shall be deemed to be a permanent employee.
PN1455
So it flows from that, that if, in fact, as we assert, the employees are not fixed-term employees, then by default they are permanent employees; permanent employees within the meaning of clause 8.1 and, in that situation, they are entitled to the quantum of payments which are identified in clause 23.
PN1456
THE D.PRESIDENT: What about where the clause says that "a date or an event will define the term of engagement; an acceptance of that will satisfy limiting rights," etcetera?
PN1457
MR FLANAGAN: Well, I think there are two points there. One is, if you entered into a contract for a specified period of time - that is, for example, in the expiration of the contract 999 in June 1997 - when that agreement expires by the effluxion of the time, if in fact you were authorised to make it and we say that you weren't because it is in breach of the agreement - but, withstanding that, if you entered into the agreement validly, if it was a valid fixed-term contract and it ran through to June 1997, then the agreement would expire by the effluxion of time.
PN1458
THE D.PRESIDENT: You mean 2007.
PN1459
MR FLANAGAN: June 2007. I beg your pardon, yes, then it would expire by the effluxion of time. In that situation, no, you don't have notice of termination; no, you don't have payment in lieu; no, you don't have severance pay - in that situation. But that is not the situation we are in.
PN1460
THE D.PRESIDENT: No, but it says a date or an event - and then there is the sale event.
PN1461
MR FLANAGAN: But when it talks about an event, on the basis of the authorities that I have taken you to, Deputy President - - -
PN1462
THE D.PRESIDENT: No, I am not interested in the authorities. I am interested in what the agreement says.
PN1463
MR FLANAGAN: Yes, but the sale event itself was indeterminate. The corporation didn't know when they signed up - - -
PN1464
THE D.PRESIDENT: Well, why would the agreement have that in there if it was not relevant?
PN1465
MR FLANAGAN: Clearly, the employer had intended to - and it is the evidence of Ms Jarvis that they wanted to reduce their exposure. Now, that may be their intention, and if it wasn't in breach of the certified agreement they may have been entitled to go down that path. But the certified agreement specified circumstances in which fixed-term employment could be applied and the evidence does not support the view that they were the circumstances which applied for the three people in these proceedings.
PN1466
THE D.PRESIDENT: I take it that these three people, if you are saying they weren't fixed-term employees and if that is accepted and they were paid the 25 per cent loading, that is going to be deducted from any entitlement they may have?
PN1467
MR FLANAGAN: Despite the requirement of the enterprise agreement, I don't believe they received the loading, Deputy President.
PN1468
THE D.PRESIDENT: Don't you?
PN1469
MR FLANAGAN: No, despite what the agreement says in that regard. So, in terms of the reference to the event, just going back to that point, the event must have a certainty about it and in June when they were signed up it is the evidence of Ms Jarvis that there was no certainty.
PN1470
THE D.PRESIDENT: But weren't they signed up under that provision, that a date or an event will determine it?
PN1471
MR FLANAGAN: Yes, that is the term which is identified in the letter of employment; but, again, the nature of the work that they were doing, together with the fact that it is on the back of another agreement which provided for termination of employment, which made that contract invalid, but both of them are attempting to apply fixed-term employment to work which is not work of the nature identified in clause 8.4. Clause 8.4 is very clear on the circumstances in which fixed-term employment could be used. The corporation went outside of that with the view, as it has been put by Ms Jarvis, to minimise their exposure. But we say they were not entitled to do that. You can't contract outside the terms of the agreement.
PN1472
THE D.PRESIDENT: That is if anyone knows what it means.
PN1473
MR FLANAGAN: Sorry?
PN1474
THE D.PRESIDENT: That is if anyone knows what it means, according to you.
PN1475
MR FLANAGAN: It is no longer ambiguous, Deputy President. We have resolved that. In these proceedings, Deputy President, we have provided you with A2 and at the back of A2 is the union's contention to law. I believe I have worked through those contentions but, to the extent that I have missed any of those contentions, then I simply ask the Commission to treat what is contained under the heading Contentions in the fourth last page of A2, I would just simply ask you to treat that as the union's submissions in respect to the law.
PN1476
Now, Mr Zeeman has provided me with a copy of the corporation's position and I would just seek to address their proposition in these proceedings - or perhaps I should wait until he puts it - - -
PN1477
MR ZEEMAN: No, I am happy for you to do that. I just don't know if the Commission has a copy of those submissions because I can't - I don't know if we, in fact, filed them. We exchanged submissions but - - -
PN1478
THE D.PRESIDENT: No, no, they weren't filed.
PN1479
MR FLANAGAN: Perhaps it is an opportune time to go and feed the meter, in any event.
PN1480
THE D.PRESIDENT: All right. If Mr Zeeman tenders those and then we can have a five-minute adjournment while you feed the meter.
PN1481
MR ZEEMAN: Yes, I am happy to do that.
PN1482
MR FLANAGAN: Thank you.
PN1483
PN1484
MR FLANAGAN: Deputy President, if I can just deal with our view of some of the issues raised by Mr Zeeman's contentions? If I can start at point 6 where they state that:
PN1485
The corporation was aware that a sale event, as defined in clause 9.5 of the agreement, was a strong possibility within a short period of time.
PN1486
We just reiterate that the evidence is that there was no certainty as to the date when that would occur and we would say on a basis of the authorities that means that it was indeterminate and, as such, the arrangements were not fixed-term. In response to Mr Zeeman's point 7, it states that:
PN1487
An employee falling into the class described in 8.3 has no access to the entitlements specified in clause 23.
PN1488
Again, we would say that that must be read in context; that if you look to - I think we have addressed you already on that issue, Deputy President. In point 8 of his contentions it is asserted that the contracts of employment came to an end one day prior to the sale event. With respect, I think the evidence is that the employees made an election to take redundancy and, in fact, that is why they are no longer employed there, not because of the effluxion of time.
PN1489
On point 9 it is contended that the employees were not entitled to make an election under 9.5. We reject that assertion and rely on the submissions I have already put. In his point 10 they say that only employees who fit within the definition of 8.1 are able to access severance payments. Our submissions have already dealt with that proposition. Clearly, we reject it. Firstly, we say that they are not fixed-term arrangements; (1) because they are in conflict with the enterprise agreement; (2) the authorities led to a conclusion that their nature is not fixed-term and that, in any event, they are entitled on the basis of the fact that there is a special provision in 9.5 when compared with a more general provision in clause 23.
PN1490
In relation to Mr Zeeman's contention 11, we simply say that the employees are not of the class of person referred to in 8.3; that is, they are not fixed-term employees. In respect to Mr Zeeman's point 12, it is true that there is evidence from - and it is contained within A2 - that Mr Ponting and Mr Davison, in fact, prior to the decision of Vice President Ross, made an election to take up the offer with Works Infrastructure. The material shows that following the decision from Vice President Ross, Mr Davison and Mr Ponting changed their minds and made an election to take redundancy.
PN1491
We say that, in the circumstances where there was an unresolved issue about the application of the clause generally, it was not unreasonable when that issue was clarified that the employees changed their mind. We make the same submission in respect of Mr Zeeman's point 13. I think they are the only issues that we needed to deal with in that regard.
PN1492
THE D.PRESIDENT: In general terms, your argument is that they were not fixed-term employees.
PN1493
MR FLANAGAN: Correct, that is the thrust of it.
PN1494
THE D.PRESIDENT: That is it in a nutshell, basically.
PN1495
MR FLANAGAN: Thank you, Deputy President. There is nothing further to put. The bottom line is, for all of the reasons that we have spoken about. They are not fixed-term; therefore, they have an entitlement to the payment in that the arrangement came to an end not because of the sale event. Their employment came to an end because they elected not to continue in employment. They didn't take up the offer by Works Infrastructure to continue in employment. So, as a matter of fact, the thing that brought it to an end was not the proposition that you have got a fixed-term contract but the fact that these employees made an election.
PN1496
Now, in the case of Mr Ponting and Mr Davison, that election is contained within A2. In the case of Mr Haines, he relied on the correspondence from Works Infrastructure which basically said, "If you don't put your hand up and say you want a job, you're not going to get one"; and that correspondence is also in A2, and Mr Haines' evidence was that he decided not to put his hand up. If it pleases the Commission.
PN1497
THE D.PRESIDENT: Okay, thank you. Mr Zeeman?
PN1498
MR ZEEMAN: Thank you, Deputy President. That is the issue from my point of view: whether these former employees of the corporation were engaged as fixed-term employees or employees pursuant to clause 8.1 of the agreement. What I would like to do, Deputy President, is just go through the authorities that Mr Flanagan has put to you. Certainly, Mr Flanagan states my understanding of the position that there is no fight between the parties as to what the law is in this area. It is simply a matter of, as it is in most cases, looking at the facts and seeing how they fit in accordance with the law, but I would like to make some comment about the authorities.
PN1499
First of all, the first authority referred to was the decision of Northrop J of Cooper v Darwin Rugby League. Mr Flanagan took you to page 241 where his Honour said:
PN1500
In my opinion, the contract of employment is for a specified time but can be terminated before the expiration of that period by either party on notice or by the respondent as employer for the misconduct of the applicant as employee.
PN1501
Essentially, I agree that at common law, for a contract of employment to be categorised as a fixed-term contract there can be a very limited notice provision and I agree that that is confined to what Northrop J has referred to as misconduct. If I could hand up a copy of a decision of Senior Deputy President Lacy, it is a decision of Senior Deputy President dated 27 August 2004? If I could take you to page 3, there is a subheading one-third of the way down the page:
PN1502
Was the applicant engaged under a contract for a specified period of time?
PN1503
Now, Senior Deputy President then goes through and identifies some principles to determine whether a contract is for a specified period of time. They are as follows:
PN1504
A specified period of time is a period of employment that has certainty ...(reads)... and not generally fixed-term in nature.
PN1505
And the final point:
PN1506
The whole of the contract is to be taken into account...(reads)... and need to be taken into account.
PN1507
Therefore, in my submission, the original letters of engagement - those being with Mr Chris Haines dated 15 July 2002, Mr Davison dated 2 April 2002, and Mr Kerry Ponting dated 18 March 2002 - at common law, can't properly be described as fixed-term contracts. What they can be described as is contracts of maximum duration.
PN1508
Now, in my submission, the distinction which is made in the decision of Cooper, also the decision of Andersen and also the decision of Fisher v Edith Cowan University are decisions that relate to whether someone is a fixed-term employee for the purposes of unfair dismissal; that is, much is made about the distinction as to whether someone is a fixed-term employee on the basis that, if they are, then they are excluded from the provisions of the legislation to pursue such a claim.
PN1509
In my submission, when you take the issue of whether someone is a fixed-term employee outside of that jurisdiction, then it is not such a big issue. Essentially, what we say is that even if at common law those original contracts are not fixed-term contracts, they are contracts of a maximum duration. Now they are distinct and they, in fact, can contain a notice provision, such as these original letters do, and there is nothing in the enterprise agreement - that is, the 1999 enterprise agreement - that precludes or is inconsistent with having a contract of maximum duration.
PN1510
So when one looks at clause 7.1 of the 1999 enterprise agreement, there is nothing inconsistent with that clause in having a contract in the terms that were, in fact, made between all three parties and the corporation. So when you accept that these contracts were contracts of maximum duration, the decisions which are relied upon by my friend take on much less significance.
PN1511
THE D.PRESIDENT: So are you saying that the letters that were signed in 2002 are fixed-term; the letters that were signed in 2003 are maximum duration? Is that the difference?
PN1512
MR ZEEMAN: The other way around.
PN1513
THE D.PRESIDENT: The other way around.
PN1514
MR ZEEMAN: Certainly, our case is that the letters that were signed in 2003 and were signed during the life of the 2002 agreement and not the 1999 agreement - - -
PN1515
MR FLANAGAN: A point which is accepted, Deputy President.
PN1516
MR ZEEMAN: They are certainly fixed-term contracts. There is no clause in the offer of employment that refers to unilateral right to terminate by giving notice. So the point is, once you accept that these are contracts of maximum duration and they are permitted by the 1999 agreement, then they come to an end and then these other contracts are entered into. Before I come to that, if I could just make mention very quickly of the decision of D'Lima? Again, Deputy President, this was a decision in respect to regulation 30B of the now repealed Industrial Relations Act 1998 but, essentially, the same type of provision that I referred to earlier.
PN1517
This case was quite different. The reality of D'Lima was that there was a series of purported fixed-term contracts which, in some instances, were essentially all instances for a period of one month. Now, we say the facts of this case are quite different to that. Certainly, there is no argument that in that instance, as was found, the reality was that there was an ongoing contract of employment. So, in my submission, the decision of D'Lima is not that helpful. In respect to the House of Lords decision and also the Commission decision flowing on from that - - -
PN1518
THE D.PRESIDENT: The West Australian decision, is that the one?
PN1519
MR ZEEMAN: Yes, the West Australian. I can't see the title of that. My view is, nothing turns on that - and perhaps if I deal with that now? The enterprise agreement, if one accepts that these former employees were engaged as fixed-term employees, specifically provides at clause 8.3, half-way down:
PN1520
A date or an event will define the term of engagement ...(reads)... or any other award or law.
PN1521
Now, if you look at clause 9.5, yes, it is a reference to employees. There is no break-down as to whether it is the employee is engaged pursuant to 8.1, 8.2, 8.3 or 8.4 of the agreement. But even if you accept that it relates to all employees, it must be read in conjunction with clause 8.e, which is very clear in its terms. It specifically that fixed-term employees accept that their engagement incorporates any right to severance payment. Then when you consider clause 23.2, again, consistent with that provision, it says:
PN1522
The following separation payments shall be made to full-time and part-time employees employed pursuant to clause 8.1 hereof.
PN1523
So, in my submission, I, with respect, do not follow the argument of my friend in respect to this, given that the provisions of the 2002 agreement are very clear. In fact, on that point I take you, Deputy President, to paragraph 74 of the House of Lords of decision and it is repeating what my friend referred you to. The third line from the bottom of that paragraph:
PN1524
Rather, it represents simple commonsense and ordinary usage. It falls within the category explained as follows:
PN1525
Then if I can take you to line 4 of that quote:
PN1526
Linguistic cannons of construction are not confined to statutes or even to the field of law. They are based on the rules of logic, grammar -
PN1527
and continues on. But the point that I wish to make is that when you interpret this provision, when you apply commonsense and a fair logical reading, it indicates that if you are a fixed-term employee, then you are entitled only to what you are paid pursuant to clause 8.3. It incorporates a severance payment, and the words which the employee may otherwise have under this agreement or any other award or law, it is clear that that also must be a reference to clause 9.5, which correlates to clause 23.2 which provides only an entitlement for an employee engaged under clause 8.1.
PN1528
So that is my view of the authorities. I have only just this morning provided a list of authorities and I apologise for that. I had overlooked the fact that we had not filed our contentions, nor our list of authorities. I don't intend to take you to any of those authorities, Deputy President, given there is no contest as to how the law sits in this area. I would simply just like to take you through my submissions, and refer to some parts of the evidence so I will be brief. So if I could refer you, Deputy President to the corporation's contentions dated 2 September 2004.
PN1529
Clauses 1, 2, 3 and 4 simply set out the - what we see as a relevant issue and also the relevant parts of the enterprise agreement, namely clause 8. If I could take you to clause 5. Firstly Mr Davison. Now, Mr Davison, we say, was initially engaged pursuant to a contract of maximum duration by way of letter dated 2 April 2002. Now, we heard evidence from Mr Davison that he initially wasn't aware that that employment in fact came to an end at a specified date. And if I could just take you briefly to his evidence. I don't know, Deputy President if you have a transcript available.
PN1530
THE DEPUTY PRESIDENT: Yes, I do.
PN1531
MR ZEEMAN: If I could take you to paragraph 417 - no, I am sorry, Deputy President, 404. In fact I have to take you back one further page, paragraph 386. Now, this evidence relates to the date of 30 June 2003, being the date which is nominated in Mr Davison's letter from the corporation of 2 April 2002 as being the expiry date of the employment. At paragraph 386, in response to the question:
PN1532
So during the course of your entire employment the date 30 June 2003 didn't even register with you?
PN1533
And his response:
PN1534
Look, I can't answer that honestly.
PN1535
And it goes on in the transcript:
PN1536
Well, it is a pretty simple question. Did it, during the course of your employment register with you?---Yes.
PN1537
If I could then take you to paragraph 404, on the following page:
PN1538
And so going back to this issue of 30 June 2003 you have told the Commission that you were aware of this date. It was in your mind. Why was it in your mind?
PN1539
And in response to that question:
PN1540
Because I was offered continual full-time work with CCC.
PN1541
And then if I could take you over to the following page, at paragraph 417 the question was put to him:
PN1542
Do you think this is a possibility that the reason that 30 June 2003 was in your mind was because it was set out in the letter that you signed on 20 March 2002?
PN1543
And in response:
PN1544
I can't answer that question.
PN1545
Now, Deputy President, my submission is that the evidence given shortly before that exchange was that Mr Davison told the Commission that he wasn't aware that the contract would come to an end, that if he had read the letter that certainly didn't register with him. My submission is that the evidence of Mr Davison was at best difficult to follow. Putting a more finer point on it, in my submission, evasive, and as was put to him, given in a way to assist his understanding of his case before the Commission.
PN1546
On that basis little weight can be given to that evidence. Any weight that can be given should in fact, in my respectful submission, be given to the corporation, as confirming the fact that a letter was sent and it was understood that that letter set out the understanding between the parties that the employment would come to an end on 30 June 2003. One other matter which is relevant to the issue of weight, not only in respect to Mr Davison's evidence, but also the evidence of Mr Haines and Mr Ponting, is that of leading by their representative.
PN1547
In my submission, much of the evidence which is now relied upon by the applicants is evidence which was led by Mr Flanagan. On that basis, without taking you to all the specific references, and I am happy to do that if necessary, but my submission is that that should be taken into account when considering the issue of weight. If I could also take you, Deputy President, to paragraph 151. Now, this picks up - and I am going to the applicant's contentions, which I understand you have a copy of.
PN1548
THE DEPUTY PRESIDENT: I have got a copy of that here, yes.
PN1549
MR ZEEMAN: If I could take you - - -
PN1550
THE DEPUTY PRESIDENT: It is the back of A3, I think, is it?
PN1551
MR ZEEMAN: I do have a copy - - -
PN1552
MR FLANAGAN: It is the back of A2, Deputy President.
PN1553
THE DEPUTY PRESIDENT: A2.
PN1554
MR ZEEMAN: It is clause 18, Deputy President. Now, this is a contention by the applicants that equity should intervene in this instance. That is, as I understand it, the applicants contend that they should be entitled to redundancy payments by way of equity. Now, we have responded to that in our submissions, and we have dealt with that at clause 14. We have questioned the jurisdiction, the equitable jurisdiction that the Commission has.
PN1555
We don't take that point - well, we don't wish to take that point. We raise it as a technical matter only, but we in fact believe the merits of the case are in our favour, when one considers the broad concept of equity. When you look at paragraph 151, and I will take you to a number of other paragraphs, Mr Davison gave evidence about his understanding of what would happen if he elected to take a redundancy payment. The question was put to Mr Davison:
PN1556
Can you tell us why you elected to take redundancy?
PN1557
And in response:
PN1558
Why I elected was I had the theory that they could not run the Smithton area ...(reads)... and that was the sole reason that I made my decision.
PN1559
And then if I can take you, Deputy President, to paragraph 278, and a question was put to Mr Davison:
PN1560
Right. So did you have much time off where you didn't work after CCC was sold?
PN1561
And then response:
PN1562
Never missed a day.
PN1563
Now, paragraph 448 the question was put to Mr Davison:
PN1564
So you thought that you would get a job with Works Infrastructure once they took over from CCC?
PN1565
And in reply to that question Mr Davison said:
PN1566
Yes.
PN1567
So he said, I had hoped. And at paragraph 452 the question was put to Mr Davison:
PN1568
So the idea essentially was to get the redundancy package and keep your job? That is what you hoped for?
PN1569
And in reply:
PN1570
Yes.
PN1571
The next question was put to Mr Davison:
PN1572
Yes. So it was almost like a windfall?
PN1573
And then if you, Deputy President, could go to paragraph 454, line 2, and in reply to that question Mr Davison said:
PN1574
That's correct.
PN1575
So on that issue of equity we say that at least Mr Davison was of the view that not only would he continue to work with - well, I withdraw that. Not only would he continue to perform his current work duties without missing a day, and that is ultimately what happened, according to his evidence, but he would also receive a windfall in accordance with the calculation under clause 23.2 of the agreement. One last point in respect to Mr Davison, that is in respect to the election, pursuant to clause 9.5 of the agreement. If I can take you, Deputy President, to line 194 - well, perhaps I won't - if I could just refer you generally to that line, but just make it a general submission that it was unclear as to what Mr Davison did, so far as his election.
PN1576
My understanding of the evidence was that he elected to take up a job with Works Infrastructure. He then withdrew that election, and elected to take up a redundancy payment. In re-examination it was put to him, in my submission, to clarify the situation, and to make the case, and this is an example of the leading that I have referred to, he agreed to the proposition that he accepted a job with Works Infrastructure, changed his mind, elected to take a redundancy payment, changed his mind, and tried to get in touch with Works Infrastructure to take up a job with them.
PN1577
Now, in my submission, that seems rather inconsistent with his understanding of wanting to have a windfall. He knew what the situation was. He was - in hindsight we know he was right. He did get a job and he has continued working, and now he wants the windfall. So we don't really know how he elected, but we also have this difficulty, which was conceded by Mr Flanagan at the outset, when he said at paragraph 76 in his opening:
PN1578
In relation to 9.5 - I am sorry, clause 13, we accept that once an election is made it is binding.
PN1579
Now, we have heard an argument that in the circumstances it was unfair to hold any employee to an election once Vice President Ross handed down his decision. Now, from an equitable point of view that may be right. But, in my submission, the respondents haven't dealt with the technical aspect, which they say in their opening - or they make the concession that once you elect that it is it. So, in my submission, we say that there has been an election, and that election was to take up employment with Works Infrastructure.
PN1580
As to how you unelect, that just hasn't been dealt with, and we say in the absence of evidence on that, or submissions, we have nothing further to say than, "Look, we agree with what has been put. Once you have elected that is it." Now, if I can take you back to the corporation's contentions, Deputy President, at page 3. Having dealt with the concept of having a contract of maximum duration, which we say the evidence supports, everyone agreed to. Certainly in the case of Mr Davison, and we will be making similar submissions in respect to the other two applicants.
PN1581
We say, notwithstanding his unclear evidence on this point, he was aware at the time that he entered into that agreement that the contract of employment would come to an end on 30 June 2003. We then have a situation where, when we look at the evidence of Ms Jarvis, we know that the - it was understood within the corporation that it may be sold, and that is reflected also in A4, the statement by David Crean, and this is importantly dated 21 March 2003. So it is clear that by the time the middle of June came along everyone understood that CCC may be sold. If I could take you, Deputy President, to the first paragraph of that exhibit it reads:
PN1582
The Tasmanian government has announced its intention to sell three government owned businesses, with the proceeds to be used for a new round of infrastructure projects.
PN1583
And at paragraph 3:
PN1584
However, it found the sale of the Civil Construction Services Corporation, the Stanley Cool Stores Board, and the Tasmanian Grain Elevators Board would confer a greater benefit to the state than continued public ownership.
PN1585
So it was well and truly on the radar that the corporation was going to be sold. So when you consider the evidence of Ms Jarvis, at paragraph 7 she says:
PN1586
At this time -
PN1587
well perhaps if I read paragraph 6:
PN1588
At the time that the contracts referred to in paragraph 40 hereof came to an end ...(reads)... the effect of clause 9.5 of the Civil Construction Corporation Enterprise Agreement 2002.
PN1589
And paragraph 8:
PN1590
On considering clause 9.5 I was concerned that if further contracts of employment ...(reads)... utilised the fixed term employment provision contained at clause 8.3 of the enterprise agreement.
PN1591
And we know from the evidence of Ms Jarvis this morning that the corporation was not adverse to using contract labour. So that would have been the safe bet. But they decided against that and engaged these three people, pursuant to clause 8.3 of the agreement. Now, as we know, clause 8.3 says:
PN1592
A date or an event will define the term of engagement.
PN1593
Now, my friend has referred to the authorities and said, "Well, the event has to be set in concrete. If it is not then it is really not a fixed term contract." My submission, and perhaps I am just repeating you, Deputy President, but there was a certified agreement in force. That took precedence over any authorities. The reality is that if you have got an instrument with statutory force, that sets out what you can and can't do, that takes precedence over what the cases say in respect to this particular issue. So we say we can rely upon the terms of the agreement, and the agreement says:
PN1594
A date or an event will define the term of engagement.
PN1595
So if we look at - and going page to page 3 of the corporation's contentions - under the heading Particulars, in paragraph 5, and this is an extract from the corporation's letter to Mr Davison of 20 June 2003, it reads as follows:
PN1596
Mr Davison's agreement was to cease one working day prior to the occurrence of a sale event.
PN1597
So we have got the event, in accordance with clause 8.3, and that says:
PN1598
As defined in clause 9.5 of the Civil Construction Corporation Enterprise Agreement 2002 ...(reads)... of the annexure to the general conditions of contract, GC and C, whichever occurs first.
PN1599
A lot was made by my friend about the maintenance contract being the core contract of the corporation. The evidence of Ms Jarvis is that yes, it was - she agreed with the terminology proposed or put forward by my friend of being the core project of the corporation. I think my friend referred to it as being the main revenue project of the corporation. Certainly there wasn't any evidence about that. But - not to my recollection - Ms Jarvis gave evidence that there were a number of projects which made up the entire business of the corporation.
PN1600
So we say, moving quickly to 8.3.2, where it says where you can and can't have a fixed term contract in the situation of providing additional support for a project or other word of limited duration. We say that the circumstances of the northern maintenance contract comfortably fit within that meaning. But having said that, and going back to what I was saying that my friend made much of this northern maintenance contract. We say really that is the date. If you want to have a date, an identified dated in clause 8.3, that is the date. If you want the event, well, the event is clearly defined.
PN1601
And for it to take on the nature of being a fixed term contract pursuant to the agreement we look at what was in the mind of the parties at the time the agreement was entered into. Now, the sale event, we say, is an event. We say on that basis it comfortably fits within clause 8.3, and importantly it doesn't contain a unilateral right to terminate for any reason. So it changes in context from being a contract of maximum duration, as is permitted by the 1999 agreement, to a contract of being fixed term in nature, which complies with the agreement, and also complies with the common law.
PN1602
If there is any doubt about the common law, so far as the reference to an event having to be specified on a set date, well, we have recourse to the agreement, and say that remedies any difficulty we have in that regard. There was also some evidence from Mr Davison in respect to what he was told about an expectation of continuing employment, and he made reference to a discussion that he had with Ms Jarvis. And if I could take you to the following paragraphs, 261. If I could just commence reading from the fourth line from the bottom from paragraph 261:
PN1603
So in terms of your employment what were you expecting would happen? Were you expecting that at a particular point in time your employment would come to an end, or did you expect your employment to continue?
PN1604
In response Mr Davison says:
PN1605
I expected my employment to continue.
PN1606
A further question was put to Mr Davison:
PN1607
Why would you have that expectation?
PN1608
And in reply:
PN1609
Because of what we was told from the start to the sale of CCC by Terry McCarthy and Kylie Jarvis that we were full-time employees.
PN1610
That, in my submission, was a reference by Mr Davison to say that he had been promised some ongoing employment indefinitely. Now, like much of Mr Davison's evidence it was difficult to follow, in my submission. When that proposition was put to Ms Jarvis this morning in-chief she gave evidence that she had not given an indication either to Mr Davison or, in that matter, to Mr Haines or to Mr Ponting. The evidence again, in my submission, of Mr Davison should be given very little weight, given the manner in which Mr Davison gave evidence.
PN1611
That can be compared to the evidence of Ms Jarvis, which was, in my submission, concise, clear and should be accepted by the Commission in respect to any inconsistency between the evidence of the witnesses. If I can now turn to Mr Chris Haines at page 3 of the corporation's contentions. Again, Mr Haines, his engagement was in similar terms to Mr Davison, so it is appropriate that I deal with those two together. And also on that point I probably should seek some clarification from my friend. During Mr Flanagan's submissions he referred to - - -
PN1612
MR FLANAGAN: During my submissions, Deputy President, I referred to Haines and Ponting being on similar arrangements. In fact it is Haines and Davison.
PN1613
THE DEPUTY PRESIDENT: Haines and Davison.
PN1614
MR FLANAGAN: Yes.
PN1615
THE DEPUTY PRESIDENT: Thank you.
PN1616
MR ZEEMAN: Thank you, Deputy President. We say again that the same arguments in respect to Mr Haines' employment, pursuant to the letter dated 15 July 2002 - sorry, I withdraw that. The same argument that was put in respect to Mr Davison's employment, in respect to his engagement pursuant to his letter from the corporation dated 2 April 2002, are equally applicable to the employment of Mr Haines, pursuant to his letter from the corporation dated 15 July 2002. That is, the evidence supports the finding that Mr Haines also was engaged pursuant to a contract of maximum duration.
PN1617
Again not inconsistent with the 1999 agreement in force at the time, that that letter was signed off on. So I won't, Deputy President, take you through those arguments again. The same arguments also apply to Mr Haines as were put in respect to Mr Davison in respect to the second letter, which was sent and agreed to during the life of the 2002 agreement, namely, the letter that was sent to Mr Haines dated 20 June 2003. So we say that its character is fixed term in nature, and is fixed term in accordance with clause 8.3 of the enterprise agreement. Now, again the evidence of Mr Haines, in my submission, was at best difficult to follow.
PN1618
Issues of credibility, in my submission, arose, as they did in respect to the evidence of Mr Davison. If I could take you to paragraph 672, there was a series of exchanges between myself and Mr Haines about how long he expected his employment to continue. Without going through each specific exchange, the exchange commenced at paragraph 672, over the page at paragraph 681 there was a reference to a period of employment of 29 July 2002 to 30 June 2003, being a reference to the period of time which was identified in the letter to Mr Haines, dated 15 July 2002. It is relevant to read this extract. A question was put to Mr Haines about that period:
PN1619
What did you understand that to mean?
PN1620
In reply:
PN1621
Never, ever took any notice, to be honest.
PN1622
The following question:
PN1623
Did you read the letter before you signed it?---Yes. Yes. Roughly, yes.
PN1624
And then at the bottom of the page, paragraph 694, the question was put to Mr Haines:
PN1625
But you don't recall the other aspects that I have just referred to, mainly that the employment would go from 29 July 2002 to 30 June 2003?---No.
PN1626
And then over the page, paragraph 702, the question was put to Mr Haines:
PN1627
So today is the first day that you have become aware that in fact you were only employed for a period from 29 July 2002 to 30 June 2003?---Oh, no, no, no. No, you're twisting me around.
PN1628
And then at paragraph 705, a further question was put to Mr Haines:
PN1629
But what about this other period, 29 July 2002 to 30 June 2003? ...(reads)... your employment, according to this contract, in fact expired on that day?
PN1630
And in reply:
PN1631
No.
PN1632
It is just an absolute surprise to you?
PN1633
And in reply to that:
PN1634
Yes.
PN1635
And then it goes on:
PN1636
Yes?
PN1637
And in reply Mr Haines says:
PN1638
Well, now you mention it, because I never sort of looked at it that way.
PN1639
In my submission, Deputy President, it is just - the evidence of Mr Haines is not credible. In my submission, and this is equally relevant to the evidence of Mr Davison, the evidence is moulded simply to fit their case. This submission is borne out further when you considered paragraph 716, when Mr Haines gave evidence that he was aware of the probationary period, which was contained in the letter. So, in my submission, Mr Haines gave evidence along the lines that he recalled some parts of the letter, but not others, and, in my submission, the reference to when the employment came to an end was very significant.
PN1640
And to have overlooked it, and not become aware of it until the day of giving evidence is just not credible. If I can now take you to page 4 of the corporation's contentions, that of the - or the submissions in respect to Mr Ponting. Mr Ponting's engagement is slightly different. It doesn't hinge upon the sale event, as defined in clause 9.5, nor does it rely upon the expiry of the northern maintenance contract. What it does do though is rely upon a date in accordance with clause 8.3 of the agreement, specifically the letter to Mr Ponting dated 28 August 2003 was in terms that employment would be for a three month term, commencing on 4 September 2003 and expiring on 3 December 2003.
PN1641
So there appears to be no difficulty, in my submission, that a date has been identified. That complies with the requirement to nominate a date or event under clause 8.3. And in accordance with the evidence of Ms Jarvis, which is uncontested, at clause 9, the employment of Mr Ponting, as was the employment of Mr Haines and Mr Davison, was in respect of contract number 994 of the State Road Network Northern Tasmanian Maintenance Services, a specific project for a specified period of time. So again we say the employment of Mr Ponting comfortably sits within that second point of clause 8.3, that the employment is in respect to additional support for a project or other work of limited duration.
PN1642
Now, one point which probably hasn't been addressed, and it is just a very small point, is that so far the corporation has relied upon the requirement that the additional support be for a project. And that is the criticism, as I understand from my friend, is that really you can't rely - well, you can't categorise the northern maintenance contract as a specific project. I mean, notwithstanding that the agreement is silent on what is a project, that is the submission of the applicants. But it is also relevant that the second link of that criteria, that is, other work of limited duration, is equally applicable in this case.
PN1643
Why is it equally applicable? Because Ms Jarvis gave evidence, and we have also got A4, the evidence of the applicant, that the government announced its intention to sell the government - the three government owned businesses, including CCC. Now, in my submission, it is not feasible to say it was only a possibility. It probably wasn't going to happen. There was a government New Year statement. It said it is the government's intention, and we know that is precisely what they did.
PN1644
So everyone, it would appear, knew that the reality was the corporation was going to be sold. That being the state of mind of everyone, and in this case relevantly the corporation, and each of these three employees, it was additional support for work of a limited duration. Because once the corporation was sold then we know that, ignoring the transmission of business provisions, we know that the contract of employment - well - I withdraw that. We know that the corporation only required employees for a limited duration.
PN1645
And we know that that is why Ms Jarvis engaged these three employees in the manner that she did. And in hindsight perhaps Ms Jarvis would have been prudent in engaging contract labourers, but we have got evidence from her that she was essentially trying to do the right thing, and give these employees further work. If we could just have a moment, Deputy President? I am just scanning my intention, as I don't want to be wasting the Commission's time.
PN1646
THE DEPUTY PRESIDENT: No. You are fine.
PN1647
MR ZEEMAN: One matter, Deputy President, which I indicated on the previous occasion I was going to potentially tender some evidence about, was in respect to contract number 994 and the relationship between the two. I have spoken to my friend about that, and given that we have the evidence of Ms Jarvis, which is uncontested at paragraph 9, it seems to be an agreed fact that this was a specific contract. As to how you categorise that there seems to be some dispute as to whether or not it was just the core contract, or whether it was a specific project, but it seems to be an agreed fact that it was in fact, as Ms Jarvis explained today, contract - there were two previous contracts - - -
PN1648
THE DEPUTY PRESIDENT: And they become one, I think.
PN1649
MR ZEEMAN: - - - 594, 595 and then there was a new contract 994. Now, basically all the evidence that I was intending to tender was in respect to the existence of that contract, but given that I understand it is an agreed fact I don't intend to do that. I don't know if Mr Flanagan - - -
PN1650
MR FLANAGAN: If I can just clarify it, Deputy President. It is accepted by the union that the government of Tasmania tenders out on a competitive tendering basis road contract - road maintenance contracts in Tasmania, and there is a particular road contract - whether it was 994 or 6 whatever, were contracts which related to road maintenance in the north east, or the north west, or the latter one, which was the entire north. So there is no issue on that, and I think that probably goes to - - -
PN1651
MR ZEEMAN: Well, that is right. It was just - I mean, I don't really want to go further than that, because we have got the evidence of Kylie Jarvis on this. So just summarising very quickly, Deputy President, we say there are a number of issues. The first is that we are unclear as to whether - well, first of all these people were engaged pursuant to fixed term contracts. We say their employment, if it came to an end by the election that they had made, well, if they were entitled to elect and that was a valid election, then what were their entitlements? Well, their entitlements were zero, because they were fixed term employees.
PN1652
Now, this is quite different to an argument perhaps that has been before the Commission previously that all employees entitlement is zero, because of some ambiguity. There is no ambiguity in this instance. If they made that election then, in accordance with the agreement, which is clear, then that was their entitlement. But we say, look, there was no entitlement to elect, because their employment came to an end one day before a sale event, and you can only elect in accordance with the agreement, upon a sale event.
PN1653
Now, if an election was made before the sale event, well, in accordance with the agreement it is not a valid election in any event. So we say that when you look at the employment, the fixed term agreements of both Mr Haines and Mr Davison, their employment came to an end prior to the sale event, therefore no election, no entitlement to elect. In respect to Mr Ponting, again, given the nature of his engagement, which we say fits comfortably within clause 8.3, then even if clause 9.5, if the definition of employee is read that widely, if he does elect, well, the entitlement is subsumed in clause 8.3, where it makes reference to severance payment.
PN1654
We haven't heard any evidence about leave loading, and that evidence has been lacking from both sides. That is conceded. So the difficulty is we say there was no entitlement to elect. If Mr Ponting was entitled to elect, well, his election essentially was take up a job if one is offered, or, "You have already received your severance payments. If you are not happy with that then you have got a claim pursuant to the agreement. For breach of the agreement you can go into 178, 179 of the Workplace Relations Act of 1996 for breach of agreement." But that is a different avenue.
PN1655
So we then say, in response to the categorisation of the northern maintenance project being a project for the purposes of 8.3, we say we take a broad interpretation of that. Understandably so. We concede that. But we pose the question, why take a narrow interpretation which ultimately suits the applicants? We say the northern maintenance contract, in accordance with the evidence that we have heard, falls within the meaning of project. If the Commission is against us on that, we say, given all the evidence that we have heard, given the statement relied upon by the applicants, by Dr Crean, the realistic expectation of the corporation, of employees, of anyone who became aware of this statement, was that the corporation was going to be sold.
PN1656
Therefore, work that they had was, in respect to this project, and it doesn't have to be just related to this specific project, but one assumes it must relate to something, must be - it falls within the meaning of limited duration. That is, the corporation is going to be sold, therefore the corporation will exist in its current ownership for a set period of time. And we don't know, at the time that Dr Crean makes his statement, in what form the corporation is going to be sold in, ie, whether it is going to become a private company or what.
PN1657
We just don't know that at the time of the statement. But the important thing is that it was in everyone's expectation that the employment was going to be for a limited duration. And on that final point of equity we rely upon the traditional approach of the Commission, prior to the decision of Finkelstein J in Amcor, which essentially is that if you have got a job to go to, you are not entitled to double dip. Thank you. If it please.
PN1658
THE DEPUTY PRESIDENT: Thank you. Mr Flanagan, anything in response?
PN1659
MR FLANAGAN: Thank you, Deputy President. There seems to be a problem with throats this morning.
PN1660
THE DEPUTY PRESIDENT: Yes.
PN1661
MR FLANAGAN: Look, I will be brief, Deputy President. If I can pick up on that point that Mr Zeeman finished on, and he was talking about equity, and he referred you to the Amcor decision, which was a departure from the traditional approach. Amcor effectively was a situation where people continued in their employment, but the employer changed, and they still received the redundancy payment. Not dissimilar to the situation where the work of the Civil Construction Corporation would be required on an ongoing basis, but the actual employer would change from being the Civil Construction Corporation to Works Infrastructure.
PN1662
Now, the critical aspect that is important is expectation. Now, the evidence, and I will talk about the credibility of that evidence, the evidence of all three - well, certainly Mr Haines and Mr Davison, was that they had an expectation that work would continue. And why wouldn't they? On 21 March the Treasurer of the state announced the sale of the corporation and told them that they would be guaranteeing as many jobs as possible.
PN1663
On 30 September the Treasurer made it absolutely clear how many jobs would be maintained, and how many would be lost. And if you can bear with me, Deputy President, it was the Hansard of the 30th of the ninth, 30 September, which is found in A2, where he made it very clear, 135 of 141 employees would be offered jobs. Now, we have heard the evidence that there was six managers that were not going to be offered jobs. That was the first part of - well, that one component of the expectation that was built up. On 11 September the Treasurer wrote to the employees and advised them that there would be offers of employment coming.
PN1664
Mr Gostello, on behalf of the corporation, wrote to all of its employees and asked them - well, indicated they would receive a letter of employment from Works Infrastructure. Correspondence - that the evidence of Ms Jarvis was that was correspondence sent to all of the employees. It also asked them to indicate whether they would want to elect to have continuing employment or take redundancy. Again, it was the evidence that that went to all of the employees. Now, we also have in A2 a copy of a letter to employees from Works Infrastructure saying, "Do you want a job? If you do, this is what we want you to do."
PN1665
So there was a real expectation on the part of these employees that there was a capacity to continue in employment. Now, it wasn't, as asserted by the corporation, that their fixed term contracts expired. The evidence doesn't support that proposition, and we have dealt with that. Now, Mr Zeeman has put it to you that the nature of the arrangements between these three employees and the corporation is not inconsistent with the enterprise agreement. Now, we submit that it is inconsistent, in particular with clause 8.3. 8.3 defines parameters where contracts of limited duration, or fixed term - it doesn't really matter what you call them.
PN1666
The proposition is that they are temporary in their nature. That is the fundamental character that those components have got. The work that was being performed by these three employees was not temporary work. It was ongoing work. So we reject the proposition that you can take some view that 8.3 in some way authorises these people to be engaged as fixed term employees.
PN1667
THE DEPUTY PRESIDENT: But the letter of employment is headed up as temporary employment.
PN1668
MR FLANAGAN: Yes, but the work that they were performing as a matter of fact was ongoing work, and the evidence of Ms Jarvis supported that proposition. And as has been recognised by Mr Zeeman the enterprise agreement has statutory faults. It is not something the corporation can choose to walk away from, once it is registered and in force. The simple proposition is that you cannot contract out of the arrangement once it is made, which is what the corporation has attempted to do on the occasion of these three people.
PN1669
Now, Mr Zeeman has criticised the evidence of Mr Davison and Mr Haines, has said that it was hard to follow, that it was evasive, that it should be given little weight. With respect, I would say that that is not a proper characterisation of the evidence. It is true that Mr Davison, and Mr Haines, and Mr Ponting were all - well, as least Mr Haines and Mr Davison were - appeared to be apprehensive and uncomfortable with giving evidence, but it is also true that they attempted to give their responses honestly, to the best of their ability. They did not, as it is suggested, mould the evidence to fit their case.
PN1670
And a simple illustration of that was their inability to identify some parts of A2, which would have been helpful in the presentation of the case. So it cannot be asserted that they attempted to mould their evidence. So other than that, Deputy President, I think the union's position is summarised very clearly by the contentions which appear at the end of A2, in relation to what we say the law is, and by the contentions as to fact, which is A1 in these proceedings, and we would simply rely on those submissions, and the submissions today, and seek that you grant the claim. If it pleases the Commission.
PN1671
THE DEPUTY PRESIDENT: All right. Thank you. I think I did clarify it is a section 111AA, or private arbitration or whatever it is.
PN1672
MR FLANAGAN: It is actually a dispute - - -
PN1673
THE DEPUTY PRESIDENT: Is it under the - - -
PN1674
MR FLANAGAN: - - - under the enterprise agreement rather than - - -
PN1675
THE DEPUTY PRESIDENT: Oh, no, I thought I saw some correspondence that referred to that.
PN1676
MR FLANAGAN: I don't think it is actually a form of section 111A(a).
PN1677
THE DEPUTY PRESIDENT: Isn't it? No. No. It is a private arbitration.
PN1678
MR FLANAGAN: It is just a dispute under the - - -
PN1679
THE DEPUTY PRESIDENT: It is just a dispute, yes.
PN1680
MR FLANAGAN: - - - the disputes procedures, something we didn't miss this time round.
PN1681
THE DEPUTY PRESIDENT: All right. Okay. Thank you. I will reserve a decision.
ADJOURNED INDEFINITELY [12.45pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
KYLIE LOUISE JARVIS, AFFIRMED PN1247
EXAMINATION-IN-CHIEF BY MR ZEEMAN PN1247
EXHIBIT #R1 WITNESS STATEMENT OF KYLIE LOUISE JARVIS PN1255
CROSS-EXAMINATION BY MR FLANAGAN PN1260
RE-EXAMINATION BY MR ZEEMAN PN1331
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