Jermiin v Commonwealth Scientific And Industrial Research Organisation [2021] FCCA 549 (25 March 2021)

Last Updated: 25 March 2021

FEDERAL CIRCUIT COURT OF AUSTRALIA

JERMIIN v COMMONWEALTH SCIENTIFIC AND INDUSTRIAL RESEARCH ORGANISATION

[2021] FCCA 549

Catchwords: INDUSTRIAL LAW – Alleged breach of employment contract – organisational restructure to implement CSIRO 2020 strategy – Where applicant was made redundant – whether Enterprise Agreement varied contract of employment –– whether Enterprise Agreement governed termination process – whether proper process in redundancy under Enterprise Agreement where no precise process identified – Application dismissed.

Legislation: Fair Work Act 2009 (Cth), ss.50, 389

Cases cited: Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8; (1980) 142 CLR 237 Australian Manufacturing Workers’ Union v Berri Pty Ltd [2017] FWCFB 3005; (2017) 268 IR 285 Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447; (2014) 245 IR 394 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited [2020] FCAFC 205 Concut Pty Ltd v Worrell (2000) 75 ALJR 312; (2000) 176 ALR 693 Dibb v Commissioner of Taxation [2004] FCAFC 126; (2004) 136 FCR 388; (2004) 207 ALR 151 Hodgson v Amcor Ltd [2012] VSC 94; (2012) 264 FLR 1 Kucks v CSR Ltd [1996] IRCA 166; (1996) 66 IR 182 National Tertiary Education Union v La Trobe University [2015] FCAFC 142; (2015) 254 IR 238 Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99; (2016) 248 FCR 18 Short v FW Hercus Pty Ltd (1993) 40 FCR 511 Soliman v University of Technology, Sydney (No.2) [2009] FCAFC 173; (2009) 191 IR 277 Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52; (2004) 219 CLR 165 Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148; (2014) 245 IR 449 Transport Workers Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829; (2014) 318 ALR 54

Applicant:

LARS SOMMER JERMIIN

Respondent:

COMMONWEALTH SCIENTIFIC AND INDUSTRIAL RESEARCH ORGANISATION

File Number:

CAG 14 of 2018

Judgment of:

Judge W J Neville

Hearing date:

3 & 4 November 2020

Date of Last Submission:

4 November 2020

Delivered at:

Canberra

Delivered on:

25 March 2021

REPRESENTATION

Counsel for the Applicant:

Dr A Greinke (direct brief)

Counsel for the Respondent:

Mr J Darams

Solicitors for the Respondent:

Ashurst Australia

ORDERS

(1) The Amended Application filed 10 May 2019 be dismissed.

(2) There be no Order as to costs.

FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA

CAG 14 of 2018

LARS SOMMER JERMIIN

Applicant

And

COMMONWEALTH SCIENTIFIC AND INDUSTRIAL RESEARCH ORGANISATION

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant, with extensive qualifications and experience of the highest order, has had a distinguished scientific research career overseas and more recently in Australia through his employment with the Respondent (“the CSIRO”).^[1] As set out in his 5 Yearly Review, dated 28^th March 2014, his areas of expertise were/are in the fields of environmental biotechnology and in genomics and evolutionary biology.^[2] That Review described the Applicant as “an internationally recognised expert in molecular phylogenetics and evolution.”^[3] In the Affidavits affirmed by the Applicant and filed in these proceedings, he described his professional position as “evolutionary biologist and bioinformatician.”
2. In 2008 the Applicant was “head-hunted” by the Respondent to work within the fields of his expertise. According to the Agreed Chronology (set out later in these reasons) the Letter of Offer from the Respondent to the Applicant was dated 16^th December 2008. It was signed by the Applicant on 31^st December 2008.^[4] He commenced employment with the Respondent in July 2009.
3. On 7^th July 2011, the CSIRO Enterprise Agreement 2011 – 2014 commenced (“the EA”).^[5] The EA applied to the Applicant and to the Respondent. Indeed, both parties, in their respective pleadings, confirmed that the Applicant was covered by the EA as from 7^th July 2011.^[6]
4. In July 2016, the CSIRO published its 2020 Strategy. The ultimate implementation of that Strategy involved (or resulted in), among other things, making up to 350 existing positions within the CSIRO redundant.
5. On 4^th February 2016, the Chief Executive Officer of the Respondent, Dr Marshall, advised all employees of CSIRO by email that, among other things, the new business strategy (“normally a business has to cut to grow”) would inevitably lead to some job losses within CSIRO.^[7] By email dated 26^th April 2016 to all CSIRO staff, Dr Marshall advised with greater detail the numbers of staff in each section or Department of the CSIRO who would be made redundant – simply referred to in the email as “staff redundancies.”^[8]
6. Over the succeeding months, various meetings took place and information was disseminated to the Respondent’s staff including things like “leadership team priorities”. Some correspondence was passed to the Land and Water Business Unit (“L and W”), and other CSIRO staff, from Dr Marshall regarding the 2020 Strategy. The Applicant worked in the L and W section, which contained within it the Environmental Contaminants Mitigation and Technologies (“ECMT”) program in which the Applicant worked more particularly.
7. Other correspondence, noted further below, came from those in management positions regarding, for example, the “impact on L and W staff” of the 2020 Strategy.^[9] By 27^th April 2016, correspondence to L and W staff provided further details about what the relevant changes would mean for the Land and Water unit, including information about “staff reductions, restructure and recruitment.”^[10]
8. On 3^rd May 2016, the Applicant attended a meeting with others, including a “Senior Human Resources” advisor regarding the Applicant’s position being potentially “impacted” by the 2020 Strategy.^[11]
9. From that time, meetings and correspondence continued apace, which are well documented in the Applicant’s material and collated in the Court Book provided by the Respondent. That correspondence and those meetings are summarised in the Agreed Chronology, set out below. The correspondence focussed, among other things, on the Applicant’s labours at CSIRO concentrating even more carefully on his aim “to increase external revenue”, and the production of a “business case” on the Applicant’s behalf to show his alignment with CSIRO’s 2020 Strategy in order that he not be made redundant.^[12]
10. On 17^th May 2016, a letter was provided to the Applicant in the course of a meeting advising him that his position at CSIRO was potentially redundant.^[13] This letter was ultimately replaced by a second letter, dated 14^th June 2016, regarding the Applicant’s potential redundancy.
11. There was some attempt, ultimately fruitless, to find an appropriate positon for the Applicant within CSIRO by way of re-deployment.
12. In an email dated 16^th August 2016, Dr Hardisty, “Director, Land and Water Flagship” at the CSIRO at the time, informed the Applicant that attempts to re-deploy him were unsuccessful. That email concluded:^[14]
    • ... External revenue generation is critical for the whole business unit, and our budgetary pressures mean that we must reduce staff. Capability we retain must be tied to expectations of external revenue generation, and in your case this emerged as a key factor. I’m sorry it’s worked out this way.
13. Respectfully, the “Land and Water Flagship” appeared to be sailing into a commercial headwind, seemingly somewhat imposed upon the Respondent by Government funding cuts, among other things, and was jettisoning quite a number of its precious cargoes, if I may use a somewhat crass analogy. How quickly ersatz commercial trade winds manifested themselves, only two years after the Applicant’s completely favourable 5 Yearly Review. We can all be grateful that the pressures and expectations of “external revenue generation” were not around when Marie and Pierre Curie, Louis Pasteur, Alexander Fleming, and Jonas Salk, among innumerable others, were experimenting and/or discovering. No less curious, and fortunate, is the fact that many of these selfless researchers decided not to patent their discoveries precisely to enable the benefits discovered to be shared widely and [relatively] freely, as opposed to being forced to seek “external revenue generation.”
14. Parenthetically, governments of all persuasions have continued to impose increasing pressures on other institutions, notably universities, to chase and give precedence to, commercialised research. It has now reached the bizarre apotheosis (or nadir, depending on one’s perspective), where potentially more commercially promising studies (e.g. in the sciences) are privileged through fee structures, while other areas, notably the humanities, are prejudiced through the same crass vehicle of fees. According to this utilitarian “external revenue inducing/production” model, the study of Kant, Milton, Keats, or Augustine, to name only a very few, will never attract commercially viable funding. To put it slightly more directly: according to the prevailing, politically preferred commercialised model, studying things like aesthetics, logic or ethics, is to be discouraged because there is no relevant “profit” to be found or yielded.
15. The Applicant’s redundancy was formalised by letter from the almost dreaded “human resources” section, here from the Senior Human Resources Adviser and Executive Coach, Ms Rogers, dated 28^th November 2016.^[15] I say “almost dreaded”, decidedly not to cause any offence, but simply to observe that most human resource sections are regularly required to reduce the “human resources” of the enterprise in question. Doubtless a thankless and sometimes, like the present matter, distressing task. Ms Rogers kindly advised the Applicant of his “retrenchment options”, all of which only resulted in the same end, namely exit from the CSIRO, which had sought out his services 8 years earlier. The commercialisation of research claimed another scalp.
16. The Applicant’s termination of employment with CSIRO took effect on 30^th January 2017. His final entitlements were paid on 8^th February 2017.
17. Although their respective questions or issues were rather similar, ultimately, however, the parties were unable to agree on the specific questions or issues for the Court to determine. The relatively short list of issues by each of the parties is set out below. However, in my view, the basic questions relate to two matters: (a) the construction question regarding the terms and conditions, applicable to the Applicant, under his contract of employment and under the EA, and (b) the procedural course taken by the Respondent purportedly in compliance with those terms. In short form, the basal question may be styled in the following terms: “was there due compliance by the Respondent with the terms and processes under the Applicant’s contract of employment and/or under the EA? If not, what if any is the appropriate remedy (including compensation) for the Applicant?”
18. For the reasons that follow, the documentation supports the arguments of the Respondent. Legally, the Respondent complied with the terms of the Applicant’s contract and/or with the terms of the EA. As will have been apparent already, the commercial reality confronting the Respondent essentially forced its hand, reluctantly or not. For such an eminent and sought after researcher as the Applicant, it was certainly an unfortunate, indeed ethically fraught, end to an illustrious career. But this is not a Court of ethics or morals. It is a Court of law. Sometimes, as here, the ethical and the legal do not happily or easily co-exist. Indeed, in many respects, the power of “external revenue generation” usurps all before it.
19. For the reasons that follow, the Amended Application, filed 10^th May 2019, must be dismissed.

The Applicant’s contract of employment – relevant terms

20. As noted above, the Applicant’s contract of employment was contained in a Document of Appointment, sent to him by the Respondent under cover of a letter dated 16^th December 2008.^[16] Clauses 1 – 4 of that Document dealt with the Applicant’s position, his duties, and remuneration.
21. Clause 5 was headed “Duration” and stated:
    • Subject to the successful completion of your probationary period (if any) and to the fulfilment of the appointment conditions set out in Part 2, your appointment is for an indefinite period (i.e. no end date has been specified for it).
22. Clause 6 confirmed that the Applicant’s appointment commenced on 1^st July 2009.
23. Clause 7 was headed “Termination.” It provided as follows:
    • Your appointment may be terminated:
      1. by you giving a minimum of two weeks’ written notice to CSIRO of resignation or voluntary age retirement;
      • b) by CSIRO in the event of –

(i) failure to meet an appointment condition;

(ii) being found guilty of an offence warranting dismissal (i.e. misconduct);

(iii) inefficiency, incompetency, incapacity or unsuitability;

(iv) redundancy (i.e. your becoming excess to CSIRO’s staffing requirements);

(v) conflict of interests.

24. Clause 12 of the contract of employment, entitled “Governing provisions”, provided that the Applicant’s appointment will be “subject to and governed by ... (c) relevant present or future legislation, Awards and Certified Agreements that are binding on CSIRO.” As noted below, no one referred to this Clause in submissions or otherwise. Why this was so was never explained or addressed. Although the formalities regarding the EA, such as its approval under Part 2-4 Division 4 of the Fair Work Act 2009 (Cth) (“the FW Act”), were not before the Court, its validity in any relevant respect was never put in issue. Plainly, there was no question that the EA applied to and bound each party. As noted later in these reasons under “Pleadings”, such matters were recognised and accepted by both parties in the filed pleadings.

CSIRO Enterprise Agreement 2011 – 2014 – relevant terms

25. Also as noted above, the CSIRO Enterprise Agreement (“the EA”) commenced on 7^th July 2011. Schedule 3 of that Agreement dealt with “Redeployment and Retrenchment.”^[17] It is sufficient for present purposes to note the following from that Schedule.
26. Clause 2 of the Schedule refers to “potentially redundant officers”. This includes the following definition:
    • An officer is potentially redundant if:
      • (i) The officer is included in a group of officers, which group comprises a greater number of officers than is necessary for the efficient and economic working of CSIRO ...
27. Clause 3 dealt with “Consultation”. Sub-clauses (a) and (b) of that Clause provided for a range of particular information to be provided to “the relevant unions.” Clause 4 dealt with “voluntary redundancy substitution.”
28. A principal focus during the trial was Clause 5, which dealt with the identification of individual officers from an impacted group of officers. Clause 5 was as follows:

(a) After voluntary redundancy substitution has been considered, in any situation where the number of roles available is fewer than the current number of officers occupying those roles, the following process will be adopted.

(b) The responsible Line Manager will use available knowledge and information to undertake an assessment of each officer against the organisational requirements for the role/s developed in line with the applicable work classification standards. The principles of procedural fairness will be applied. The officer will have the opportunity to provide information if they so choose, however, they will not be required to make a formal application for their existing role.

(c) The final decision will be made by the responsible Line Manager and affected officers will be advised. Where it is determined that there is no ongoing organisational requirement for the officer’s skills, the officer will be advised that they are potentially redundant and will be provided with information in accordance sub-paragraph 6(a).

29. It will be immediately apparent that, although the terms of Clause 5 referred to, or prescribed, the relevant Line Manager to “use available knowledge and information to undertake an assessment of each officer against the organisational requirements for the role/s developed ...” (emphasis added), the reality was there was no detail or specification of what that assessment precisely involved or required. Similarly, under the contract of employment there was no specificity of any process to be undertaken regarding “redundancy.”
30. The terms of Clause 5 also required that “the principles of procedural fairness will be applied.” Again, no details or procedures were actually detailed or specified. That said, the documentation collated in the Court Book, and in the light of the oral evidence, made plain that the Applicant was relevantly and regularly involved in discussions with Dr Davis, and others, throughout the difficult time in 2016 when the issue of redundancy was being discussed. Those discussions also involved whether redeployment was a possibility for the Applicant. This is to say that the Applicant was given regular opportunity, which he took, to question what was happening (including the decision-making process) and to advance his case.
31. Clause 6 provided for “advice and information” to be provided to the “impacted officer”. This included the senior manager advising the officer of “details of the circumstances which have given rise to the potential redundancy” and “why the individual officer’s position has been identified as potentially redundant.” Other information to be provided also included potential re-deployment and “other options available which may prevent the redundancy,” among other things.
32. Clauses 7 and 8 of the Schedule dealt with, respectively, “redeployment” and “retrenchment.” The remaining sections of the Schedule dealt primarily with matters relating to various kinds of payments.

Pleadings

33. The pleadings of the parties are located at Tabs 2 and 3 of Court Book.
34. Relevantly, the Applicant’s Amended Statement of Claim, filed 10^th May 2019, at par.15A, pleaded that “clauses 2 and 5 of Schedule 3 of the Enterprise Agreement has the effect of varying clause 7(b)(iv) of the Agreement to conform with the Enterprise Agreement.”
35. Par.15B of the Statement of Claim pleaded that “alternatively, by operation of s.50 of the Fair Work Act 2009, CSIRO was prohibited from terminating the Applicant’s employment except in accordance with Clauses 2 and 5 of the Enterprise Agreement.”
36. Pars.16 – 26 outlined the Applicant’s account of the notification of possible redundancies at CSIRO and the process that ensued. The steps identified are essentially summarised in the Agreed Chronology set out below and the documents in the Court Books to which reference was made in the Chronology.
37. Summarised, the Applicant challenged various members in the management of CSIRO regarding (a) their knowledge of the Applicant’s capabilities, and (b) the redundancy process. The Applicant also pleaded (par.18) that the Respondent could not provide a document that outlined the criteria against which redundancies would be assessed. It was not relevantly explained where or how any duty to provide such a document arose.
38. At pars.20 and 23, the Applicant quoted from two letters provided to him, dated respectively 17^th May 2016 and 14^th June 2016, which, he averred, each contained different reasons for the Applicant’s redundancy. Both letters were from Dr Paul Hardisty, who was Director of the Land & Water Section at CSIRO.^[18]
39. Par.27 set out the specific grounds of the alleged “wrongful and invalid” termination of the Applicant’s employment with the Respondent. These grounds included the contention that the Respondent did not carry out any assessment, or any genuine assessment of the Applicant as against other officers in the affected group (Land & Water). The Applicant further contended among other things, that:

(i) CSIRO decided the redundancies by reference to financial and budgetary considerations, rather than the organisational requirements for the roles, and the capabilities of the officers, including the Applicant, for those roles;
(ii) CSIRO failed to assess, or genuinely assess, whether there was an ongoing organisational requirement for the Applicant’s skills; and
(iii) It was not the case that there was no ongoing organisational requirement for the Applicant’s skills at CSIRO.

40. On 24^th May 2019, the Respondent filed an Amended Response to the Application and a Defence to the Amended Statement of Claim. For current purposes, it is sufficient to note that the Respondent (a) denied that it had repudiated the Applicant’s contract with CSIRO, (b) denied that it was in any way relevantly liable for any of the claims made by the Applicant, and (c) relied upon the correspondence (set out essentially in full) in the Amended Defence in support of its decision to make the Applicant redundant. Accordingly, the Respondent sought Orders for the Application to be dismissed.

Issues to be determined

41. The Applicant’s stated issues for determination were as follows:
    • 1. Did Schedule 3 of the Enterprise Agreement have the effect of varying the applicant’s contract of employment regarding termination for redundancy?
    • 2. Was CSIRO required to comply with clause 5 of Schedule 3 in order to terminate the Applicant’s employment on the grounds of redundancy?
    • 3. Did CSIRO comply with clause 5 of Schedule 3 and in particular:
      • (a) did the responsible Line Manager (Dr Greg Davis) both purport to and in fact carry out the assessment required by clause 5(b)?
      • (b) did Dr Davis purport to determine that there was no ongoing organisational requirement for the Applicant’s skills as referred to in clause 5(c) of Schedule 3?
      • (c) was it in fact the case that there was no ongoing organisational requirement for the applicant’s skills at CSIRO?
    • 4. What is the proper measure of compensation, whether for breach of contract or pursuant to s 545 of the Fair Work Act 2009 (Cth)?
42. The Respondent’s issues to be determined, not dissimilar to those of the Applicant, were as follows:
    • 1. Did Schedule 3 of the CSIRO Enterprise Agreement 2011-2014 vary clause 7(b)(iv) of the Applicant’s contract of employment?
    • 2. Did clause 5 of Schedule 3 of the CSIRO Enterprise Agreement 2011-2014 apply to the Applicant’s circumstances at the times material to the issues in the proceedings?
    • 3. If the answer to Question 2 is "yes", was the Respondent required to comply with clause 5 of Schedule 3 in order to terminate the Applicant's employment on the grounds of redundancy?
    • 4. If the answer to Question 2 is "yes", did the Respondent :
      • (a) comply with the requirement to conduct the assessment required by clause 5(b) of Schedule 3?
      • (b) determine that there was no ongoing organisational requirement for the Applicant’s skills as referred to in clause 5(c) of Schedule 3?
    • 5. If the answer to Question 4(a) and/or 4(b) is "no", what is the proper measure of compensation, whether for breach of contract or pursuant to s 545 of the Fair Work Act 2009 (Cth)?

Agreed Chronology

43. The Agreed Chronology was as follows. It provides a convenient and very helpful overview of the many signal meetings and documents relevant to the issues before the Court, helpfully cross-referenced to the Court Book:

Date	Event	Court Book reference	Reference in affidavit/s
31 December 2008	Letter of offer from CSIRO dated 16 December 2008 and document of appointment signed by Dr Jermiin.	Tab 12, pp. 80-84	-
July 2009	Dr Jermiin commenced employment at CSIRO.	Tab 4, p. 34	Affidavit of Lars Sommer Jermiin affirmed 22 August 2018, [2].
7 July 2011	CSIRO Enterprise Agreement 2011-2014 commenced. The Agreement covered and applied to CSIRO and Dr Jermiin until the termination of Dr Jermiin's employment.	Tab 13, pp. 85-107	-
July 2015	CSIRO 2020 Strategy published.	Tab 17, pp. 124-139	Affidavit of Lars Sommer Jermiin affirmed 18 January 2019, [17] and Annexure LSJ-17.
14 December 2015	Email from Paul Hardisty, Director of Land & Water Business Unit (L&W) to staff in L&W with an update about leadership team priorities, including alignment of the L&W Strategy with the CSIRO 2020 Strategy.	Tab 19, pp. 150-152	-
3 February 2016	Dr Greg Davis, Research Director, Environmental Contaminants Mitigation and Technologies Program (ECMT) and other Research Directors within L&W attended a meeting with Dr Hardisty, and Dr Paul Bertsch, the Deputy Director of L&W, to discuss the impending announcement regarding the CSIRO 2020 Strategy and its implications for L&W.	Tab 8, pp. 50-51	Affidavit of Gregory Bruce Davis sworn 17 October 2018, [8]-[9].
4 February 2016	Email from Larry Marshall, CSIRO CEO, to all CSIRO staff regarding the CSIRO 2020 Strategy	Tab 20, pp. 153-156	Affidavit of Lars Sommer Jermiin affirmed 22 August 2018, [5] and Annexure LSJ-1. Affidavit of Gregory Bruce Davis sworn 17 October 2018, [6]-[7].
4 February 2016	Email from Dr Hardisty to L&W staff regarding impact of the CSIRO 2020 Strategy on L&W staff.	Tab 21, pp. 157-158	Affidavit of Lars Sommer Jermiin affirmed 22 August 2018, [6] and Annexure LSJ-2. Affidavit of Gregory Bruce Davis sworn 17 October 2018, [10].
Between February and April 2016	Dr Davis undertook an assessment of all of the then current positions within ECMT to identify potentially excess positions.	Tab 8, pp. 52-54 Tab 25, p. 190	Affidavit of Gregory Bruce Davis sworn 17 October 2018, [14]-[17], [21]-[23] and Annexure GD-2.
22 March 2016	Meeting between Dr Marshall and L&W staff to discuss the 2020 Strategy.	Tab 4, p. 35	Affidavit of Lars Sommer Jermiin affirmed 22 August 2018, [7].
12 April 2016	Business case for approval to proceed to implementation of business unit restructuring – Land & Water finalised	Tab 22, pp. 159-184	Affidavit of Gregory Bruce Davis sworn 17 October 2018, [12] and Annexure GD-1.
26 April 2016	Email from Dr Marshall to CSIRO staff regarding update about the changes to help deliver the 2020 Strategy.	Tab 23, pp. 185-186	Affidavit of Lars Sommer Jermiin affirmed 22 August 2018, [9] and Annexure LSJ-3.
27 April 2016	Email from Dr Hardisty to L&W staff regarding staff reductions, restructure and recruitment.	Tab 24, pp.187-189	Affidavit of Lars Sommer Jermiin affirmed 22 August 2018, [10] and Annexure LSJ-4. Affidavit of Gregory Bruce Davis sworn 17 October 2018, [13].
3 May 2016	Meeting between Dr Davis, Dr Jermiin, Dr John Oakeshott and Ms Kathryn Rogers, Senior Human Resources Advisor, ECMT, regarding Dr Jermiin's position being potentially impacted.	Tab 4, p. 35 Tab 8, pp. 55-56 Tab 9, pp. 64-65	Affidavit of Lars Sommer Jermiin affirmed 22 August 2018, [12]-[14]. Affidavit of Gregory Bruce Davis sworn 17 October 2018, [26]-[28]. Affidavit of Kathryn Alison Rogers sworn 17 October 2018, [11]-[14].
3 May 2016	Email from Ms Rogers to Dr Davis regarding process and forwarding an email from Dr Jermiin attaching two documents: Alignment of Dr Jermiin with CSIRO's aim to increase external revenue; Projects that have benefited from capabilities provided by Dr Jermiin	Tab 28, pp. 197-201	Affidavit of Gregory Bruce Davis sworn 17 October 2018, [30] and Annexure GD-4.
3 May 2016	Email from Dr Davis to Dr Jermiin regarding action items arising from the meeting.	Tab 29, p. 202	Affidavit of Gregory Bruce Davis sworn 17 October 2018, [29] and Annexure GD-3.
4-5 May 2016	Dr Jermiin had discussions with Dr Oakeshott and Dr Owain Edwards, Group Leader, Environmental Genomics, regarding presenting a business case to CSIRO to not make him redundant.	Tab 4, p. 36	Affidavit of Lars Sommer Jermiin affirmed 22 August 2018, [15].
6 May 2016	Email correspondence between Dr Davis and Dr Jermiin regarding action items and preparation of Dr Jermiin's business case.	Tab 40 pp. 294-297	Affidavit of Gregory Bruce Davis sworn 17 October 2018, [] and Annexure GD-10.
10 May 2016	Email from Dr Hardisty to L&W staff regarding clarification of the process for identifying impacted capabilities in L&W.	Tab 32, pp. 207-208	Affidavit of Lars Sommer Jermiin affirmed 22 August 2018, [17] and Annexure LSJ-5. Affidavit of Gregory Bruce Davis sworn 17 October 2018, [13].
16 May 2016	Email from Dr Jermiin to Dr Davis attaching a document titled Business case for retaining Lars Jermiin in CSIRO.	Tab 33, pp.209-213	Affidavit of Lars Sommer Jermiin affirmed 22 August 2018, [18] and Annexure LSJ-6. Affidavit of Gregory Bruce Davis sworn 17 October 2018, [32].
17 May 2016	Meeting between Dr Davis, Dr Jermiin, Dr Oakeshott and Ms Rogers to advise Dr Jermiin that he had been identified as potentially redundant. A letter advising Dr Jermiin that his position was potentially redundant was provided to Dr Jermiin at this meeting.	Tab 4, p. 36 Tab 8, pp. 56-57 Tab 9, pp. 65-66 Tab 34, pp.214-216 Tab 35, pp. 217-252	Affidavit of Lars Sommer Jermiin affirmed 22 August 2018, [19]-[20] and Annexure LSJ-7. Affidavit of Gregory Bruce Davis sworn 17 October 2018, [34]-[35], [37] and Annexure GD-5. Affidavit of Kathryn Alison Rogers sworn 17 October 2018, [16]-[25].
20 May 2016	Letter from Dr Jermiin to Dr Davis provided by email in response to the meeting and letter of 17 May 2016.	Tab 36, pp. 253-254	Affidavit of Lars Sommer Jermiin affirmed 22 August 2018, [21] and Annexure LSJ-8. Affidavit of Gregory Bruce Davis sworn 17 October 2018, [39].
2 June 2016	Email from Dr Jermiin to various CSIRO officers including Gary Fitt, Andrew Young, Paul De Barro and Andy Sheppard, copying Dr Davis, Dr Oakeshott and Dr Edwards attaching documents titled: Business case for retaining Lars Jermiin in CSIRO; and Business case covering the timeframe 2016-19	Tab 41, pp. 298-305	Affidavit of Gregory Bruce Davis sworn 17 October 2018, [40] and Annexure GD-6.
2 June 2016	Dr Davis provided Dr Jermiin's business cases to Dr Fitt, Deputy Director of Health and Biosecurity Business Unit, and Dr Young, Director of National Collections and Marine Infrastructure and initiator of the Environomics FSP, ahead of redeployment meetings on 3 June 2016.	Tab 8, p. 59	Affidavit of Gregory Bruce Davis sworn 17 October 2018, [46].
3 June 2016	Dr Davis and Dr Oakeshott had meetings with Dr Fitt and Dr Young, to discuss redeployment opportunities for Dr Jermiin outside of ECMT.	Tab 8, p. 59	Affidavit of Gregory Bruce Davis sworn 17 October 2018, [46].
14 June 2016	Email correspondence between Dr Davis and Dr Jermiin regarding redeployment discussions.	Tab 58, pp. 351-352	Affidavit of Gregory Bruce Davis sworn 17 October 2018, [48] and Annexure GD-12
15 June 2016	Letter dated 14 June 2016 to replace the letter of 17 May 2016 advising Dr Jermiin that his position was potentially redundant provided to Dr Jermiin by email from Ms Rogers to Dr Jermiin, copying Dr Davis.	Tab 44, pp. 326-329 Tab 45, p. 330	Affidavit of Lars Sommer Jermiin affirmed 22 August 2018, [22] and Annexure LSJ-9. Affidavit of Gregory Bruce Davis sworn 17 October 2018, [42]. Affidavit of Kathryn Alison Rogers sworn 17 October 2018, [27] and Annexure KR-2.
15 June 2016	Redeployment period for Dr Jermiin commenced.	Tab 9, p. 67	Affidavit of Kathryn Alison Rogers sworn 17 October 2018, [28].
21 June 2016	Email from Dr Jermiin to Dr Davis attaching a letter in response to the letter dated 14 June 2016 advising Dr Jermiin that he was potentially redundant.	Tab 48, pp. 333-335	Affidavit of Gregory Bruce Davis sworn 17 October 2018, [43] and Annexure GD-7.
22 June 2016	Email from Dr Jermiin to Dr Davis attaching an updated copy of the letter provided by Dr Jermiin to Dr Davis on 21 June 2016.	Tab 49, p. 336 Tab 50, pp. 337-338	Affidavit of Gregory Bruce Davis sworn 17 October 2018, [44] and Annexure GD-8. Affidavit of Lars Sommer Jermiin affirmed 22 August 2018, [23]-[24] and Annexure LSJ-10.
22 June 2016	Email from Dr Davis to Dr Jermiin in which Dr Davis provides an update about redeployment.	Tab 52, p. 340	Affidavit of Lars Sommer Jermiin affirmed 22 August 2018, Annexure LSJ-11. Affidavit of Gregory Bruce Davis sworn 17 October 2018, [48] and Annexure GD-12
13 July 2016	Email from Dr Davis to Dr Jermiin in which Dr Davis provides an update about redeployment discussions.	Tab 55, p. 343	Affidavit of Gregory Bruce Davis sworn 17 October 2018, [48] and Annexure GD-12
14 July 2016	Email correspondence between Ms Rogers, Dr Davis and Dr Edwards in relation to Future Science Platform Leader – Synthetic Biology position	Tab 56, pp. 344 - 348	Affidavit of Gregory Bruce Davis sworn 17 October 2018, [46] and Annexure GD-11
20 July 2016	Email correspondence between Dr Davis and Dr Jermiin with a request from Dr Jermiin for an update about redeployment discussions.	Tab 58, pp. 354-355	Affidavit of Gregory Bruce Davis sworn 17 October 2018, [48] and Annexure GD-12
25 July 2016	Email from Dr Davis to Dr Jermiin in which Dr Davis provides an update about redeployment discussions.	Tab 57, pp. 349-350	Affidavit of Gregory Bruce Davis sworn 17 October 2018, [48] and Annexure GD-12
3 August 2016	Email from Dr Jermiin to Dr Marshall and Dr Hardisty following meetings to discuss his potential redundancy.	Tab 60, pp. 359-360	-
16 August 2016	Email from Dr Hardisty to Dr Jermiin advising that the course of Dr Jermiin's case was not able to be changed.	Tab 61, p. 361	Affidavit of Gregory Bruce Davis sworn 17 October 2018, [45] and Annexure GD-9.
22 August 2016	Email correspondence between Ms Jen Appleby, Administrative Officer and Dr Jermiin inviting Dr Jermiin to attend a meeting with Dr Davis on 25 August 2016	Tab 62, pp. 362-363	Affidavit of Gregory Bruce Davis sworn 17 October 2018, [51]-[52] and Annexure GD-13.
23 August 2016	Dr Jermiin absent from duty on sick leave. Dr Jermiin did not return to duty after this date.	Tab 9 pp. 68-69	Affidavit of Kathryn Alison Rogers sworn 17 October 2018, [34].
28 November 2016	Email from Ms Rogers to Dr Jermiin attaching letter advising Dr Jermiin of his retrenchment and options.	Tab 73, pp. 410-419	Affidavit of Gregory Bruce Davis sworn 17 October 2018, [55]. Affidavit of Kathryn Alison Rogers sworn 17 October 2018, [42] and Annexure KR-13. Affidavit of Lars Sommer Jermiin affirmed 22 August 2018, [25] and Annexure LSJ-12.
30 January 2017	Termination of Dr Jermiin's employment with CSIRO takes effect.	Tab 9, p. 71 Tab 73, pp. 410-419	Affidavit of Kathryn Alison Rogers sworn 17 October 2018, [52].
8 February 2017	CSIRO pays Dr Jermiin his final entitlements (including severance pay).	Tab 90, pp. 479-480	Affidavit of Kathryn Alison Rogers sworn 17 October 2018, [55] and Annexure KR-24. Affidavit of Lars Sommer Jermiin affirmed 22 August 2018, [27].

Matters of Evidence

44. Given the amount and significance of contemporaneous documentation relied upon by both parties and collated in the Court Book, the oral evidence, to a not insignificant degree, was necessarily somewhat limited. Indeed, in my view, and in no critical way of any of the witnesses, the oral evidence assisted the Court very little.
45. The Applicant filed three Affidavits on 23^rd August 2018, 21^st January 2019, and 26^th October 2020 respectively. These are located behind Tabs 4, 5 and 6 of the Court Book.
46. The Respondent relied upon two Affidavits, one sworn by Dr Greg Davis (Research Director in the Environmental Contaminants and Biotechnology Program of the Respondent) on 17^th October 2018 (filed 18^th October 2019). The other Affidavit was sworn by Ms Kathryn Rogers on 17^th October 2018, and filed on 18^th October 2018. Ms Rogers was the Human Resources Manager of the Respondent at the relevant time(s). These Affidavits are behind Tabs 8 and 9 of the Court Book.
47. The only witnesses called to give oral evidence were the Applicant, and Dr Davis on behalf of the Respondent. This is also to say that Ms Rogers was not required for cross examination. The Applicant’s brief evidence, relevantly summarised, was as follows.

The Applicant’s evidence

48. The Applicant had a number of colleagues to support him in the course of this very difficult process. The Applicant confirmed that he trusted in particular one of these colleagues, namely Dr Oakeshott. He trusted some others, such as Dr Edwards, rather less so. The Applicant said that Dr Oakeshott understood his (the Applicant’s) capabilities and that he was putting these capabilities forward to others within CSIRO with a view to exploring other possible employment opportunities within the organisation.
49. In a slightly similar vein, the Applicant said that he advocated on his own behalf to Dr Hardisty, who was then Director of the Land and Water section in CSIRO. He said that he advanced, as best he could, his capabilities with Dr Hardisty. The Applicant said, however, that he had the general impression that while Dr Hardisty was sympathetic, he felt that Dr Hardisty’s hands were tied by policy decisions. The Applicant said that he also felt that Dr Hardisty did not comprehend or appreciate as fully as the Applicant would have liked, his range of capabilities. The Applicant nonetheless, fairly in my view in all of the trying circumstances in which he found himself, said that he trusted Dr Hardisty. He also said that he was given a fair hearing by Dr Hardisty.^[19] As it happens, Dr Hardisty resigned from the Respondent in February 2017. Nothing turns on this fact for current purposes.
50. The Applicant confirmed that he expressed to Dr Hardisty his frustration at the process and the criteria used by Dr Davis in assessing the redundancy issue. He said that the sole focus was on “financial reasons” with essentially no reference to scientific capabilities. The Applicant confirmed that he had a great deal of respect of Dr Hardisty. This was reflected, at the time of the redundancy process, in the Applicant’s long, cordial and collegiate email to Dr Marshall, who was head of the CSIRO at the relevant time, and Dr Hardisty, dated 3^rd August 2016. It is headed “Thanks for listening earlier today.”^[20] In the course of that email, the Applicant said:
    • Being able to articulate my concerns to those who actually have the power to change things was comforting, even though it may have no consequences on my case.
51. The Applicant also confirmed that there were many of his colleagues at CSIRO who faced the same predicament as he did regarding redundancy and that they too faced this fate on the basis of financial considerations at CSIRO. In short, the Applicant’s view was that CSIRO had taken a position whereby revenue took precedence over research.

The evidence of Dr Davis

52. Dr Davis’ oral evidence was in the context where, in his Affidavit (filed 18^th October 2018), the following matters were outlined:

(a) On 4^th February 2016, the Chief Executive of CSIRO (Dr Marshall) announced that CSIRO would be “refocussing its strategy and investment in particular areas as a result of its 2020 Strategy to help deliver on the government’s desire to use innovation to drive growth, productivity, exports and jobs ...” (par.6);
(b) At par.7 of this Affidavit, Dr Davis deposed that this new strategy “would lead to up to 350 positions being made redundant across the organisation, but predominantly in Data61, Oceans & Atmosphere, Land & Water and Manufacturing...”;
(c) At an earlier meeting on 3^rd February 2016 with Dr Hardisty (among others) there was discussion about the need to “re-shape the capability and profile of Land & Water...” which had a particular focus on “potential for growth of external revenue ...” and “100 fulltime equivalent positions within Land & Water would be made redundant and 50 new positions which align to the [new] Land & Water Strategy could be created” (par.9);
(d) Pars.14 – 19 set out the steps undertaken by Dr Davis to identify “potentially excess positions and determination of excess positions in ECMT”. I need not detail what is set out in those paragraphs, other than to note that eight positions were identified, including the Applicant’s position, as “potentially excess positions”;
(e) Dr Davis deposed (par.21) that the Applicant “had a high level of science capability, somewhat unique in the CSIRO”. He said that certain “mapping” had been undertaken, which showed that the Applicant “had not been successful in obtaining externally funded projects and that opportunities beyond Dr Jermiin’s sphere of direct control were also not available”;
(f) Pars.24 and following outlined various meetings between Dr Davis and the Applicant in May 2016 and various events following those meetings. Again, I need not outline those matters;
(g) At pars.46 – 48, Dr Davis outlined various steps and inquiries about possible redeployment opportunities for the Applicant, which were ultimately unsuccessful. In this regard, I note that in Ms Rogers’ Affidavit, filed 18^th October 2018, at par.32, she confirmed that, when the Applicant was seeking redeployment, there were approximately 350 other officers also seeking redeployment of which the CSIRO could redeploy [only] some 82 officers or thereabouts. Therefore, together with the Applicant, there were approximately 267 officers who could not be redeployed;
(h) Pars.49 – 56 outlined the steps taken in relation to, including the correspondence concerning, the termination of the Applicant’s employment. At pars.49 – 50 in particular, Dr Davis deposed that, after more than “two months of actively seeking to identify redeployment opportunities” within CSIRO and where it was apparent that this would not be possible for the Applicant, he had determined that
(i) Dr Jermiin’s position was no longer needed for the efficient and economic working of the CSIRO;
(ii) The services of Dr Jermiin could not be effectively used in the CSIRO; and
(iii) Dr Jermiin was excess to requirements.

53. Dr Davis’ brief oral evidence, summarised, was as follows.
54. By reference to par.9 of his Affidavit, Dr Davis confirmed that as early as 3^rd February 2016, Dr Hardisty (and others) confirmed that “sources of external revenue” was a particular focus for CSIRO. He said that this emphasis upon “external revenue” was not a completely new focus for the Respondent, and indeed, it had been a significant focus generally, if not a priority, for quite some time.
55. Dr Davis said that his first meeting with the Applicant on 3^rd May 2016 was not, per se, about making him redundant. Rather it was a general discussion about the Applicant being a potentially “impacted officer” that would likely, or may, lead to redundancy. He said that at the 3^rd May meeting with the Applicant there was a general discussion about the “documents” relevant to the process then underway regarding possible redundancy. The main document he referred the Applicant to was the Enterprise Agreement. He said, contrary to the Applicant’s contentions, that they discussed the criteria involved regarding the redundancy of officers. Dr Davis said the discussion canvassed the need for external revenue source(s), which needed to be approximately 20 – 30% of funding. He confirmed that he did not raise with the Applicant any concerns about lack of external funding in the past.
56. Dr Davis said that the focus regarding “external revenue sources” was primarily about an officer’s ability “to sell their work”.
57. Regarding the letter provided to the Applicant, dated 17^th May 2016 (at CB 214), Dr Davis confirmed that it was incorrect in relevant parts, notably regarding the Applicant’s apparent sole research specialty in phylogenetics. He said however that not only did he agree to update and correct the letter but also that he took into account all of the Applicant’s capabilities, not just in phylogenetics. He denied that he did not know all of the Applicant’s capabilities.
58. By reference to the EA (clause 5(b)), Dr Davis confirmed that he was the responsible “line officer” in relation to the Applicant. At the time of his first meeting with the Applicant on 3^rd May 2016, he said that the Applicant was relevantly an “impacted officer” but by the time of the second meeting with him the Applicant had become a “potentially redundant officer.”
59. Dr Davis stressed that, in his view (he confirmed that he took advice regularly from Ms Rogers of HR), the Applicant was not covered by Clause 5 of the EA because it referred to “identification of individual officers from an impacted group of officers”. His focus was on the description “an impacted group of officers”.
60. Subject to what is said later in these reasons, in my view, Clause 5 is open to a range of different possible interpretations. It is less than clear, or helpful, for any individual officer facing redundancy, as opposed to “an impacted group of officers”, how Schedule 3 of the EA assists such a person. Moreover, again subject to what is said later in these reasons, Schedule 3 is opaque in its lack of definition regarding who is, and who is not, or what does, and what does not, constitute, “an impacted group of officers.” Clearly, someone who is employed by the Respondent, and who is facing redundancy, is “impacted”. Necessarily, if there are other officers of the Respondent facing a similar dilemma, as a group, they will all be “impacted officers.” This is so even if they are from different parts or sections of the CSIRO. And in any event, the Applicant, like many others affected by the Respondent’s 2020 Strategy, was part of all those “impacted officers” within the Land and Water Section of the Respondent, which would, thereby, bring him within the terms of Clause 5 of Schedule 3 of the EA.
61. Dr Davis said that there was no one else within CSIRO, and certainly no relevant “group of officers”, who were at the same level as the Applicant, namely a senior Level 8 scientist. The Applicant’s unique position, in Dr Davis’ view, highlighted that the terms of Clause 5 of Schedule 3 of the EA did not apply to him.
62. Dr Davis confirmed that he looked at everyone as a “group” for the purposes of possible “redeployment” of members within the group generally and the Applicant in particular. His focus was on trying to align the Applicant’s capabilities with the “strategic direction of the CSIRO” and the requirements of the organisation with respect to the importance of securing sources of external revenue. He also confirmed that in making his assessments, he checked regularly with Ms Rogers (of HR) and with Dr Hardisty, head of Land and Water.
63. At a little length, Dr Davis was questioned about CSIRO priorities and the correlation between “scaled research opportunities” and external funding. In his view, there was always a strong, direct link between the two, and that the Applicant was not able to demonstrate, historically or through various business models proposed, sufficient “capability” that linked his research capabilities with relevant, external income streams.
64. Following a range of questions regarding the difference between an individual who is being considered for redundancy, as opposed to someone who was part of a “group” who was being similarly considered, Dr Davis confirmed effectively that whether it was an officer considered as an individual, or someone considered as part of a group, the considerations in Clause 2 of Schedule 3 were the points of reference, limited as they were, in my view. He also said that he was not across the finer detail of such distinctions (e.g. between an individual qua individual, compared to an individual who was part of a group). He seemed to accept, albeit inferentially, that the considerations in Clause 5(b) were used perhaps more by coincidence and overlap with Clause 2.
65. In a similar vein, Dr Davis confirmed that the areas of the Applicant’s “capability” set out in the letters dated 17^th May 2016 and 14^th June 2016, addressed to the Applicant, at CB 214 and 326 respectively, remained areas in which the Respondent conducted research. He confirmed further that the areas of research noted in those letters were precisely the areas he canvassed with others regarding possible redeployment for the Applicant, but unfortunately to no avail.
66. Dr Davis confirmed that officers of the calibre, and in the position, of the Applicant were in positions that were, for a time, fully funded by CSIRO and not dependent upon external funding. He said that this was, initially, the case when the Applicant was employed by CSIRO. And although the Applicant’s position was an expensive one, budgetary considerations were not (he said), per se, directly relevant to matters relating to the Applicant’s redundancy. Further, Dr Davis said, it was not a criticism of the Applicant that he had no track record in securing external funding. It was, he said, simply a statement of fact that the lack of external funding by the Applicant was a factor in the weighing of matters relating to redundancy.
67. Dr Davis accepted that the 2014 review of the Applicant was a glowing assessment of him. At the same time, he said that events subsequent to that review sought to bring about what he called an “external alignment” with a focus on external funding, which was, he confirmed, “policy driven”, and ultimately led to the significant number of redundancies. He said the primary focus was on the financial and practical benefit to the nation of the research being done at CSIRO. He also acknowledged that there was a constant tension for scientists to become “more business oriented.”
68. Dr Davis confirmed that he sought out possible other positions for the Applicant, and that these inquiries led to a position where 60% of funding was available to retain the Applicant at the CSIRO.^[21] Relevant parts of that correspondence were as follows.
69. First, in an email to the Applicant, dated 13^th July 2016, Dr Davis reported on his various discussions with various other units at CSIRO. Dr Davis said that he was “not happy” about the results achieved thus far. He continued:
    • All we spoke to appreciated the depth of science you had to offer but also articulated strong pressures in their business units on staffing levels and increasing levels to secure external funding. Because of this, across all discussion, we have not found a critical mass of opportunities that would support your position, and to date could not find a redeployment position in one of our business units ...
70. Dr Davis confirmed that he (and others named in the correspondence) were “still looking.”
71. To this email, the Applicant responded briefly on 20^th July 2016:
    • Thanks for your latest update. It doesn’t look good, but I think it is worth fighting on. Can you tell me what commitments you have received so far and from whom?
72. Dr Davis replied on 25^th July 2016, saying, in part:
    • ... The commitment from H & B was 20% and from NCMI was also 20%. L & W was also around 20%. Note that this is all largely appropriation (strategic investment). Key missing factors are external project opportunities and a redeployment position in one of the other business units. The latter is required because of the impost on the head count in L & W...
73. In summary, Dr Davis said that it was not a case of the Applicant not having expertise or capabilities relevant to CSIRO but more so that, across the whole of the CSIRO, there was not the demand for his capabilities sufficient to create, or to maintain, his position. He also confirmed that from approximately 2015, whenever he gave any presentation, he emphasised the importance or significance of external revenue sources, and that there could be redundancies. In fact, during a re-structure in 2014, he said there were many redundancies in middle management at CSIRO. In these circumstances, the “round of redundancies in 2016” did not come totally “out of the blue” within the CSIRO. What was of concern and a surprise (obviously not a happy one) was the scale or magnitude of the redundancies in 2016.
74. Dr Davis said that the number of redundancies in the Land and Water section were ultimately made by the CEO of CSIRO, Dr Marshall, and other senior executives. He said that he was not part of those discussions, which would also have involved Dr Hardisty as the Business Leader for Land and Water.
75. Again Dr Davis confirmed that phylogenetics was only one area of the Applicant’s various capabilities. He also again confirmed that the reasons for the Applicant’s redundancy were as set out in the Respondent’s revised letter, dated 14^th June 2016.^[22] In part, that letter provided:
    • As discussed when we met on 17^th May 2016, following concerns you raised at the meeting this is an amended letter to confirm that CSIRO no longer requires the job that you are doing to be performed due to our changed operational requirements.
    • The reasons for your potential redundancy are as follows:
      • The impact of CSIRO shifting investment away from Land and Water to other areas is having substantial effects on staffing including that in our Program [sic]. It is compelling Land and Water to increasingly support staff on external funds and business opportunities. ... Though these capabilities will continue to be important for genome bioinformatics research, Land and Water’s foreseeable business opportunities are not of a scale to support ongoing fundamental genome bioinformatics research based on phylogenetics and molecular evolution theory and tools.
76. Dr Davis said that in earlier annual reviews concerning the Applicant, the issue of external funding had been raised.

Observations on the evidence

77. By way of general observations on the oral evidence of both witnesses, I note the following.
78. First, both the Applicant and Dr Davis gave their evidence fairly and in a relatively straight-forward manner, accepting that the Applicant was the aggrieved party and Dr Davis was, in a sense, seeking to defend his employer (CSIRO). The so-called defence was in relation to both its policy decisions (e.g. especially regarding the constant emphasis on “external funding”, and in turn, the flow-on effects regarding redundancies), and also concerning the process that ultimately led to the Applicant’s departure from CSIRO. What began with something of a [positive] “bang” for the Applicant in 2008 certainly ended in a most unfortunate “whimper” for him, but which obviously included the hundreds of other CSIRO officers who were made redundant as a result of economically enforced “policy decisions.”
79. Secondly, there was a certain, quiet defensiveness in Dr Davis’ oral evidence. Doubtless some of this was because he was giving evidence electronically, as did the Applicant (from Ireland). That said, there was something of an impression that he was more of a “company man”, who was very careful in his comments not to stray too far from CSIRO policy. In saying this, I do not suggest that he was untruthful or that there was any relevant “spin” put on his evidence. It is simply that he was very careful to keep to the evidence in accordance with the stated policy.
80. Thirdly, on both the oral evidence and particularly in the light of the significant documentation before the Court collated in the Court Book, there can be little doubt that, from at least early 2016, the Applicant was well aware of the policy shift of the Respondent regarding either a new, or a renewed, policy that placed procurement of external funding streams above what might be called “pure research”. By this latter term I seek to refer to research that was not commercialised in any relevant way and in turn was not tied to, or dependent upon, either external revenue sources, or prospective commercial gain (e.g. through patents), either for CSIRO and/or the researcher(s) involved.
81. Moreover, despite the understandable chagrin, inhumanity, commercial indifference, sense of humiliation, injustice at an employer effectively being able to change a contract of employment unilaterally, and much else besides, the Applicant clearly knew from an early stage (a) the policy shift of the Respondent, (b) the focus upon external revenue sources, (c) the likelihood if not near certainty of redundancies across a range of units within CSIRO, and (d) that the Land and Water “section” of the Respondent, like other sectors also, were likely to suffer staff losses as part of the implementation of the new and commercially-oriented policy. He was also aware that he, among others, was clearly in the cohort of officers more likely than not to face redundancy – whatever his specific contract said in 2008. Further, the correspondence collected in the Court Book includes emails between the Applicant and Dr Davis, among others, which set out or confirm a degree of recognition and regretful acceptance by the Applicant that his position was, from the perspective of the Applicant, commercially untenable.
82. In Byrne v Australian Airlines Ltd the plurality judgment of Brennan CJ, Dawson and Toohey JJ, said:^[23]
    • Short of a law deeming an employment relationship to exist when it does not, the question whether or not it continues to exist seems to us to be a question of fact.
83. Subject to the discussion later in these reasons, as a question of fact, throughout 2016, the documentary and oral evidence confirms that, ultimately as a result of policy decisions taken by the Respondent, which included certain levels of re-structuring the CSIRO based to a significant degree upon financial considerations, the employment relationship between the Applicant and the Respondent was ending and ultimately ended.

Submissions on behalf of the Applicant

84. The Applicant’s submissions, filed 6^th October 2020, were as follows (footnotes omitted):
    • Applicant’s outline of opening submissions
    • 1. In 2009 the applicant (Dr Jermiin) was appointed as an officer of the respondent (CSIRO) and OCE Science Leader at CSIRO Entomology, Canberra. He was headhunted by CSIRO for this position.
    • 2. This senior appointment came with academic tenure, an indefinite contract of employment that could only be terminated within the limited circumstances contained in clause 7(b) of his agreement.
    • 3. The circumstance in clause 7(b)(iv) is where the applicant is “redundant”.
    • 4. From 2011 the employment became subject to the CSIRO Enterprise Agreement 2011-2014 (Enterprise Agreement). Clause 5(c) of Schedule 3 of the Enterprise Agreement defined redundancy as where:
      • ... there is no ongoing organisational requirement for the officer’s skills.
    • 5. In 2016 CSIRO became subject to budget reductions, which ultimately resulted in the termination of staff purportedly for redundancy.
    • 6. Dr Jermiin contends that his termination was wrongful because his position was not redundant within the meaning of the Enterprise Agreement.
    • 7. Further, CSIRO did not comply with the procedural requirements of the Enterprise Agreement for an assessment of his skills and role in CSIRO.
    • 8. He claims damages for breach of contract, or alternatively, compensation pursuant to s 545 of the Fair Work Act 2009 (FWA).
    • 9. The damages or compensation is claimed as the loss of future salary to retirement in 2027 and superannuation, less his termination payment.
    • 10. He has attempted to mitigate his loss by applying for other academic positions but has been unsuccessful to date. This is unsurprising because at the time of termination he was 57 years old.
    • Redundancy – Enterprise Agreement
    • 11. Dr Jermiin was employed pursuant to a written employment agreement, being an instrument made under s 32 of the Science and Industry Research Act 1949.
    • 12. He commenced duties on 1 July 2009. His duties are set out in clause 2 of the written agreement. Clause 5 provided that his appointment was “for an indefinite period (i.e. no end date has been specified for it)”.
    • 13. Clause 7(b) provided that his employment may be terminated by CSIRO on in limited circumstances, including by clause 7(b)(iv) in the event of redundancy.
    • 14. From 2011 Dr Jermiin’s employment became subject to the Enterprise Agreement, made pursuant to s 182 FWA. The provisions applied to Dr Jermiin by clause 4 of the CSIRO Enterprise Agreement.
    • 15. Schedule 3 of the Enterprise Agreement codifies redeployment and retrenchment for redundancy. Clause 5(c) of Schedule 3 defined redundancy as where:
      • ... there is no ongoing organisational requirement for the officer’s skills.
    • 16. Clause 5(b) requires that the responsible Line Manager:
      • ... will use available knowledge and information to undertake an assessment of each officer against the organisational requirements for the roles developed in line with the applicable work classification standards.
    • 17. The applicant submits that the effect of the Enterprise Agreement was to vary the terms of his common law employment agreement, to conform with the requirements of the Enterprise Agreement.
    • 18. The effect of awards was considered in Ansett Transport Industries (Operations) Pty Ltd v Wardley, where Wilson J observed that an award will seldom lend itself to a “covering the field” test of inconsistency on the subject of the contract of employment. Rather it will generally be a case of specific provisions having the effect of rendering inoperative any provisions of subordinate law, whether common law or statutory, touching that employment.
    • 19. In Soliman v University of Technology, Sydney (No 2) the Full Court of the Federal Court quoted with approval an earlier Full Court in Quickenden v O’Connor, in which Black CJ and French J considered the effect of a certified agreement on common law contractual rights as:
      • It created rights and obligations which were statutory in character and could operate in addition to the rights and obligations under his contract and, where inconsistent, no doubt displace them.
    • 20. And also from Quickenden in which Carr J stated:
      • As the High Court of Australia explained in Byrne v Australian Airlines Ltd ... an award imposes certain statutory terms and conditions which do not necessarily displace underlying common law contractual relations. If they conflict, the award or certified agreement may modify the contractual provisions, but otherwise they continue to co-exist.
    • 21. Applying the above principles, the effect of the Enterprise Agreement was to modify Dr Jermiin’s common law employment agreement in respect of termination for redundancy, so that clause 7(b)(iv) was replaced by the definition in clause 5(c) of Schedule 3 of the Enterprise Agreement, and the imposition of the procedural requirements in clause 5(b) of Schedule 3.
    • 22. Alternatively, CSIRO was prohibited by the operation of s 50 FWA from terminating Dr Jermiin’s appointment except in accordance with clause 5 of Schedule 3 of the Enterprise Agreement.
    • Invalid Redundancy
    • 23. The two critical requirements for a valid redundancy in Schedule 3 are:
      • (a) the process in clause 5(b) that the responsible Line Manager must undertake an assessment of each officer against the organisational requirements for the role; and
      • (b) the test in clause 5(c) for a redundancy which requires that there be no ongoing organisational requirement for the officer's skills.
    • 24. Redundancy was considered by the Full Court of the Supreme Court of South Australia in R v Industrial Commission of South Australia; ex parte Adelaide Milk Supply Co-operative Ltd, in which Bray CJ said that:
      • ... the concept of redundancy in the context we are discussing seems to be simply this, that a job becomes redundant when the employer no longer desires to have it performed by anyone. A dismissal for redundancy seems to be a dismissal, not on account of any personal act or default of the employee dismissed or any consideration peculiar to him but because the employer no longer wishes the job the employee has been doing to be done by anyone.
    • 25. Accordingly, identification of the job role or duties will be of critical importance.
    • 26. The concept of redundancy may also draw meaning from the statutory, industrial or contractual context in which it is used. Here the position was a senior scientific research leader akin to a professor with academic tenure.
    • 27. Consistent with this context, the test in clause 5(c) is focussed on the skills of the officer and imposes the high bar that there be no ongoing organisation requirement for those skills as well the assessment process in clause 5(b).
    • 28. The applicant contends that the test in clause 5(c) was not met and that the assessment required by clause 5(b) was not carried out.
    • 29. On 4 February 2016 Larry Marshall then Chief Executive sent an email to CSIRO staff announcing job losses arising from budget cuts. On 26 April 2016 he announced numbers of planned staff reductions by research area. This was followed by an email from Paul Hardisty to CSIRO Land and Water staff.
    • 30. On 3 May 2017 Dr Jermiin attended a meeting with Greg Davis (then Research Director of CSIRO Land and Water) and was informed he was likely to be made redundant. When Dr Jermiin asked for a copy of the criteria against which redundancies would be decided, he was told that there was no such document.
    • 31. Dr Jermiin then said:
      • Well, how can you then make such a decision? It would not be appropriate to consider my redundancy unless there is a clear set of criteria against which I am to be compared.
    • 32. Dr Davis said that eight staff were to be made redundant “for financial reasons”.
    • 33. When he asked what he could do to cancel a decision to make him redundant, Dr Jermiin was told there would need to a better alignment of his research with external revenue-generating projects.
    • 34. On 9 May 2016 Dr Davis invited Dr Jermiin to a second meeting to be held on 17 May 2016, to formally advise him of his redundancy. On 16 May 2016 Dr Jermiin sent an email to Dr Davis attaching a business case has had discussed with John Oakeshott and Owain Edwards.
    • 35. At the meeting on 17 May 2016 Dr Davis handed Dr Jermiin a formal letter, which advised Dr Jermiin that:
      • ... CSIRO no longer requires the job that you are doing to be performed due to our changed operational requirements.
    • 36. Then followed a paragraph purporting to explain the reason for the redundancy.
    • 37. On reading the letter Dr Jermiin became upset and emotional. He said:
      • This letter is simply wrong. Phylogenetics is just one of the many capabilities that I provide to CSIRO.
    • 38. Dr Oakeshott agreed, “Lars is right. He provides capabilities in many other areas, none of which were taken into consideration in this letter.”
    • 39. The response from Dr Davis was, “The justification will need to be updated”, and made an annotation on the letter to that effect.
    • 40. Dr Jermiin then asked whether Dr Davis or those above him (Paul Hardisty or Paul Bertsch) knew his capabilities and the value of his capabilities. Dr Davis admitted that he did not know.
    • 41. On 20 May 2016 Dr Jermiin sent a letter of protest to Dr Davis.
    • 42. On 15 June 2016 Dr Jermiin received a revised version of the letter given to him at the meeting on 17 May 2016, with the justification updated to add “molecular evolution” to “phylogenetics”.

43. On 22 June 2016 Dr Jermiin wrote a further letter of protest, pointing out again that this was a limited and wrong view of his capabilities. Dr Davis responded by email, stating:

• As unpalatable as it is, the bottom line as I see it is we are struggling to find resources across L&W to support staff (given 70 FTEs of resources are being taken away) and, as I tried to articulate in the letter, business opportunities to fund your area of work are or were not viable at the scale required.
• 44. On 28 November 2016, Kathryn Rogers sent a letetr retrenching Dr Jermiin with effect from 30 January 2017.
• 45. In his evidence, Dr Davis attempts to offer an ex post justification for his decision to make Dr Jermiin redundant. Even if his evidence were accepted, it would not demonstrate compliance with the assessment process required by clause 5(b) and fails to show that the test in clause 5(c) was satisfied, or even considered.
• 46. Dr Davis repeatedly refers to a "Land & Water Strategy" but does not explain this strategy was or produce any document setting out this strategy. It is apparent that the decision to terminate Dr Jermiin was driven by a "business case", by reference to funding limitations, not by an assessment of his skills.
• 47. This is highlighted by Greg Davis's admission at paragraph 23 that Dr Jermiin could not be "supported" (meaning funded) because:
  • This was because the present and future mapping of Dr Jermiin's capability did not demonstrate sufficient engagement on internally or externally funded projects.
• 48. The mapping document at GD-2 was something never previously discussed with Dr Jermiin, never formed part of his employment expectations (or any other CSIRO Officer to the best knowledge of Dr Jermiin) and was simply wrong.
• 49. Dr Davis asserts that Dr Jermiin had failed to perform in securing externally funded research projects. Such a role was not part his duty statement or discussed in any of Dr Jermiin’s annual reviews. This reason would not be a proper basis for redundancy but a disguised termination for dissatisfaction with performance.
• 50. It was wrong to characterise Dr Jermiin’s research as limited to “fundamental research” as asserted in the revised explanation letter.
• 51. Dr Jermiin’s research from 2014 included applied research aligned with CSIRO’s 2020 Strategy, including work on a patent as well as papers in international peer-reviewed scientific journals.

52. It was the case that CSIRO continued to have organisational needs for his skills, demonstrated by the employment of new researchers in genomics following Dr Jermiin’s retrenchment.

53. A week after his termination, on 8 February 2017, CSIRO announced a new $3 million program in Synthetic Biology Future Science Platform. He was already working in several areas relevant to this platform and had research and leadership capabilities that were critical to this platform.

• 54. After his redundancy, current and former CSIRO researchers have continued to consult Dr Jermiin for advice and guidance in relation to ongoing CSIRO research, including Matthias Nachtschatt, Andreas Zwick and Louise Teasdale.
• Quantum
• 55. Dr Jermiin was terminated at age 57, and since has been unable to find work, despite applying for positions in Australia and internationally. He remains unemployed. He has accordingly acted reasonably to mitigate his loss.
• 56. His base salary was at the CSOF7M level, with a higher salary loading set to CSOF8.2 for five years, which in 2014 was renewed for a further five years.
• 57. On termination his salary was $163,776 per annum. On termination he received an eligible termination payment of $47,092.14. Dr Jermiin claims for the balance of his salary to retirement at age 67, plus superannuation, adjusting for vicissitudes, less the termination payment.
• 58. Despite being adversely affected emotionally by the redundancy, Dr Jermiin does not claim damages for psychiatric injury, nor does he seek any grossing up of damages or compensation having regard to the impact of personal taxation.

Submissions on behalf of the Respondent

85. The Respondent’s submissions, filed 20^th October 2020, were as follows (footnotes omitted):
    • RESPONDENT'S OUTLINE OF SUBMISSIONS
    • Introduction and background
    • 1. These are an outline of the submissions of the Respondent (CSIRO) in proceedings commenced by the Applicant (Dr Jermiin) on 13 March 2018 (Proceedings). On 10 May 2019, Dr Jermiin filed an Amended Application and Amended Statement of Claim (ASOC).
    • 2. Dr Jermiin was employed by CSIRO from 1 July 2009 in the position of OCE Science Leader.
    • 3. The terms of Dr Jermiin's employment on commencement were set out in clause 2 of a Document of Appointment dated 16 December 2008, and signed by Dr Jermiin on 31 December 2008.
    • 4. From 7 July 2011, Dr Jermiin was covered by the CSIRO Enterprise Agreement 2011-2014 (the Agreement), a workplace agreement made under Part 2-4 of the Fair Work Act 2009 (Cth) (FW Act).
    • 5. The genesis of the dispute the subject of the Proceedings was the announcement by the Chief Executive Officer (CEO) of CSIRO on 4 February 2016 of an organisational restructure to implement CSIRO's 2020 Strategy (2020 Strategy), which included:
      • (a) focussing CSIRO's strategy and investment on particular fields of scientific research; and, as a result
      • (b) making up to 350 positions redundant across the organisation.
    • 6. At the time of the CEO's announcement, Dr Jermiin was employed in the Environmental Contaminants Mitigation and Technologies (ECMT) program within the Land & Water Business Unit of CSIRO.
    • Contentions advanced by Dr Jermiin
    • 7. Whilst Dr Jermiin has made a number of claims in the ASOC, including with respect to breach of contract, repudiation of the contract and repudiation of the Agreement, it is apparent from his outline of written submissions dated 6 October 2020 (AS) that the salient issue is whether clause 5 of Schedule 3 of the Agreement applied to his circumstances.
    • 8. CSIRO submits that Dr Jermiin’s claims proceed on a fundamental misunderstanding and misconstruction of the terms of the Agreement. CSIRO accepts that Schedule 3 of the Agreement applied to Dr Jermiin and the circumstances arising out of the CEO Announcement. However, as is set out below, CSIRO complied with the applicable clauses and Dr Jermiin was validly retrenched in accordance with his contract of employment and the Agreement. CSIRO says that the Proceedings should therefore be dismissed.
    • The construction of the agreement
    • 9. The salient issue in these proceedings turns on the proper construction of the Agreement.
    • 10. The principles applicable to that task are oft cited and are as follows:
      • (a) The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context (City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378 per French J);
      • (b) The interpretation “... turns on the language of the particular agreement, understood in the light of its industrial context and purpose ...” (Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] per Gleeson CJ and McHugh J);
      • (c) The words are not to be interpreted in a vacuum divorced from industrial realities (Wanneroo at 378). The task is to recognise that industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Wanneroo at 378–9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)); and
      • (d) A purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced (Kucks v CSR Ltd [1996] IRCA 166; (1996) 66 IR 182 at 184 per Madgwick J; Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] per Marshall, Tracey and Flick JJ; Amcor at [96] per Kirby J): see WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 at [197] per Tracey, Bromberg and Rangiah JJ.
    • 11. Applying those principles, CSIRO contends as follows for the purposes of these proceedings:
      • (a) Dr Jermiin was identified as being “potentially redundant” because of either circumstance identified in clause 2(a)(i) or (ii) of Schedule 3 of the Agreement.
      • (b) On its proper construction, clause 5 of Schedule 3 of the Agreement is directed to a process akin to what is colloquially known, industrially speaking, as a “spill and fill” (National Union of Workers v Qenos Pty Limited [2001] FCA 178; (2001) 108 FCR 90 at [27], [31]; Ayoub v AMP Bank Ltd [2011] NSWCA 263 at [6] per Whealey JA). It did not apply to Dr Jermiin in the circumstances of the case.
      • (c) In any case, CSIRO complied with the substance of clause 5 of Schedule 3 of the Agreement.
      • (d) Contrary to Dr Jermiin’s submission (AS[4],[15]), clause 5(c) does not define redundancy in the circumstances, generally or specifically in respect of Dr Jermiin.
    • Process leading to Dr Jermiin's redundancy
    • Decision in relation to organisational changes
    • 12. In response to the 2020 Strategy, a decision was made to reshape the capability profile of the Land & Water Business Unit to focus on strategic research priorities that present strong science and impact opportunities, including the potential for growth in external revenue (Land & Water Strategy). To this end, it was initially identified by CSIRO that up to 100 FTE positions were to be made redundant in Land & Water, and 50 new positions created to align to the Land & Water Strategy.
    • Initial identification of potentially excess positions
    • 13. Each Research Director within Land & Water identified potentially excess positions, recorded in a business case dated 12 April 2016 (Business Case). The Business Case provided that 67 positions were potentially excess.
    • 14. As part of the assessment referred to in paragraph 13, Dr Gregory Davis, Research Director of the ECMT Program:
      • (a) reviewed each of the positions within the ECMT Program (approximately 100 positions) for alignment with current and future science and research initiatives, external projects or scaled opportunities;
      • (b) consulted with other Research Directors in Land & Water and the Group Leaders within ECMT to identify the capabilities that needed to be retained or reduced having regard to the Land & Water Strategy;
      • (c) considered whether research capabilities could be alternatively sourced from universities; and
      • (d) considered each employee's current, historic and potential future deployment on projects, particularly external projects.
    • 15. As a result of this assessment, Dr Davis identified eight positions within ECMT as potentially excess, including Dr Jermiin's position.
    • 16. Dr Davis carried out the following assessment in relation to Dr Jermiin's position:
      • (a) consultation with Dr Jermiin's Group Leader about the breadth of capability across the Environmental Genomics Group, Dr Jermiin's expertise and other areas of the organisation where that expertise may be able to be utilised;
      • (b) consideration of Dr Jermiin's current, historical and potential future deployment on internal and external research projects, which included 0.48 FTE on internal projects in 2014/15, 0.31 FTE on internal projects in 2015/16, and 0.20 FTE on internal projects projected for 2016/17;
      • (c) consideration of the expectations on a Level 8 Research Scientist, which include identifying and obtaining external funding for research opportunities suitable for their capabilities. Dr Jermiin had not been successful in obtaining external research opportunities; and
      • (d) finding that elements of Dr Jermiin's work in phylogenomics could be undertaken by CSIRO's partners in academia.
    • 17. As a result of this assessment, and in light of the Land & Water Strategy, Dr Davis determined that Dr Jermiin's capability was unlikely to be able to be supported and was a potentially excess capability.
    • Consultation process with Dr Jermiin
    • 18. On 3 May 2016, Dr Jermiin attended a meeting with Dr Davis and Kathryn Rogers (Human Resources Manager) where he was informed that his position was potentially excess. During the meeting, Dr Davis encouraged Dr Jermiin to provide further information about his capabilities and research opportunities, which may mitigate his potential redundancy, or assist with identifying redeployment opportunities.
    • 19. Following this meeting, Dr Jermiin provided two documents to Ms Rogers on 3 May 2016, which she forwarded to Dr Davis, explaining the alignment of his skills with CSIRO's aim to increase external revenue, and setting out a list of projects that had benefited from his capabilities. Dr Davis considered these documents and determined that the information provided did not change his decision that Dr Jermiin's position was potentially excess.
    • 20. On 16 May 2016, Dr Jermiin sent Dr Davis a business case for retaining his position. Dr Davis considered the business case, but was not satisfied that the information provided was sufficient to mitigate Dr Jermiin's potential redundancy because most of the opportunities identified in the business case were internal, and no externally funded projects were contracted or agreed.
    • Dr Jermiin is informed that he is potentially redundant
    • 21. On 17 May 2016, Dr Jermiin attended a further meeting with Dr Davis and Ms Rogers where Dr Jermiin was provided a letter advising him that his position was potentially redundant for the following reasons:
      • Phylogenetics is an important component of our genomics work in general, and prior to the recent restructure, this capability was co-located with the ANIC and ANWC collections – which provided a broader path to impact opportunities for this research. Foreseeable business opportunities are not of a scale to support fundamental work in this area. As the organisation moves towards improved engagement strategies with partners in academia, this would provide a more sustainable alternative to source phylogenetics capability in the future as needed.
    • 22. The reasons for Dr Jermiin's potentially redundancy, as explained in the letter, were prepared by Dr Davis after considering the information set out in paragraphs 16, 19 and 20 above. During the meeting, Dr Jermiin alleged that the reasons stated for his potential redundancy were flawed because they only took account of one of his capabilities.
    • 23. On 20 May 2016, Dr Jermiin sent an email to Dr Davis attaching a letter in response to the letter of 17 May 2016. On 2 June 2020, Dr Jermiin copied Dr Davis to an email attaching two business cases for retaining his position, dated 9 and 15 May 2016.
    • 24. Dr Davis considered these documents but they did not change his view that Dr Jermiin's position was potentially redundant because "[f]oreseeable business opportunities were not of a scale to support fundamental work in this area".
    • 25. Notwithstanding this, Dr Davis updated the reasons for Dr Jermiin's potential redundancy in the letter of 17 May 2016 to include a broader description of Dr Jermiin's capabilities and explain why those capabilities could not be supported within CSIRO. Ms Rogers sent a copy of the revised letter, dated 14 June 2016, to Dr Jermiin by email on 15 June 2016.
    • 26. On 21 June 2016, Dr Jermiin sent a letter to Dr Davis in response to the letter of 14 June 2016. On 22 June 2016, Dr Jermiin sent a further updated letter to replace the letter of 21 June 2016. In these letters, Dr Jermiin asserted that his capabilities could be utilised in the areas of Synthetic Biology FSP and Environomics FSP. Dr Davis consulted leaders in these areas, but they could not commit to requiring Dr Jermiin's capabilities.
    • 27. On 16 August 2016, Director of Land & Water, Dr Paul Hardisty, sent an email to Dr Jermiin confirming that the decision that he was potentially redundant would be maintained, that it had not been possible to redeploy him, and that external revenue generation was a key factor in this case.
    • Redeployment opportunities
    • 28. In accordance with clause 7 of Schedule 3 to the Agreement, Dr Jermiin's two month redeployment period initially commenced on 17 May 2016, when Dr Jermiin was advised by letter that his position was potentially redundant. However, as the letter was revised and a new version provided to Dr Jermiin on 15 June 2016, Dr Jermiin's redeployment period was taken to have started on 15 June 2016.
    • 29. Between 17 May and 15 August 2016, CSIRO took the following steps to identify redeployment opportunities for Dr Jermiin:
      • (a) Dr Davis:
        • (i) reviewed the business cases and other documents provided by Dr Jermiin;
        • (ii) attended meetings with leaders in other business groups to discuss redeployment opportunities for Dr Jermiin outside of ECMT (as noted in paragraph 26 above);
        • (iii) requested Dr Jermiin's Group Leader to identify any possible opportunities for redeployment of Dr Jermiin's capabilities; and
        • (iv) liaised with Ms Rogers regarding potential redeployment opportunities;
      • (b) Ms Rogers:
        • (i) liaised with Dr Davis regarding potential redeployment opportunities;
        • (ii) requested a CV from Dr Jermiin, and key words for his capabilities;
        • (iii) added details about Dr Jermiin to the CSIRO-wide Redeployment Register;
        • (iv) reviewed the CSIRO-wide Redundancy Substitution Register on a weekly basis to identify available positions suitable for Dr Jermiin; and
        • (v) reviewed vacant positions advertised on CSIRO Jobs Central on a weekly basis, as well as positions that came to her attention by email.
    • 30. CSIRO was not able to identify a redeployment option for Dr Jermiin, even though the redeployment period for Dr Jermiin was extended, in effect, between May 2016 to November 2016. At the time that CSIRO was seeking redeployment options for Dr Jermiin there were approximately 350 other officers also seeking redeployment. Of those, CSIRO was able to redeploy approximately 82 officers. Dr Jermiin and approximately 267 others could not be redeployed.
    • Termination of employment
    • 31. Following an extended redeployment period, on 28 November 2016, CSIRO notified Dr Jermiin that his position was redundant.
    • 32. Dr Jermiin’s employment was terminated with effect on 30 January 2017, and he was paid out his entitlements on that basis.
    • The position in summary
    • 33. The announcement of the 2020 Strategy signalled a change of the kind that fell within clause 2(a)(ii) of Schedule 3 of the Agreement. It constituted, at the very least, a change in the organisation of the functions of CSIRO. CSIRO further submits that, ultimately, Dr Jermiin was also potentially redundant because of the circumstances identified in clause 2(a)(i) of Schedule 3 of the Agreement.
    • 34. CSIRO’s restructure of its organisation as a consequence of the 2020 Strategy is a paradigm event that ordinarily results in the redundancy of positions within a business or organisation (R v Industrial Commission of Australia; Ex parte Adelaide Milk Supply Co-Operative Ltd (1977) 16 SASR 6 at 26 – 27 (per Bright J); Quality Bakers of Australia Ltd v Goulding (1995) 60 IR 327 at 332 – 333 (per Beazley J); Fosters Group Ltd v Wing [2005] VSCA 322; (2005) 148 IR 224 at [36]; [2005] VSCA 322, Habersberger J. Hodgson v Amcor Ltd [2012] VSC 94; 264 FLR 1 at [371] (per Vickey J)).
    • 35. It is manifest that clause 2 of Schedule 3 of the Agreement identified and sought to give effect to such circumstances. For the reasons explained above, CSIRO submits that the Court will be comfortably satisfied that Dr Jermiin’s position was potentially redundant as a consequence of the changes implemented to give effect to the 2020 Strategy.
    • 36. By consulting with Dr Jermiin and informing him as to why his position was potentially redundant and considering the information he provided during that process, CSIRO also complied with its obligations pursuant to clause 57 of the Agreement and clause 6 of Schedule 3 of the Agreement. The evidence referred to above also demonstrates that CSIRO fulfilled its obligations under clause 7 of Schedule 3 of the Agreement in undertaking a redeployment period that extended for a number of months, and for longer than was required by clause 7(a) of Schedule 3 of the Agreement.
    • 37. As CSIRO develops in the submissions that follow, Dr Jermiin’s case is fundamentally misconceived because it proceeds on the assumption that clause 5 of Schedule 3 applied and had to be followed by CSIRO. But that is not the case. Clause 5 of Schedule 3 did not define redundancy and did not impose any procedural requirements in the circumstances.
    • Clause 5 did not apply to the circumstances pertaining to Dr Jermiin because it is directed to circumstances akin to a “spill and fill”
    • 38. CSIRO submits that when clause 5 of Schedule 3 is construed in context (Wanneroo at 378), it is apparent that it is directed to determining who is to be offered a role in a situation where:
      • (a) there are persons who are working in the same position type or have essentially interchangeable skills; and
      • (b) there are fewer roles available than the current number of employees occupying those roles.
      • For example, a situation where CSIRO has (before the implementation of the relevant decision leading to the redundancy) 10 payroll officer roles but only requires 7 payroll officer roles for its business/organisation (after the implementation of the relevant decision). Clause 5 provides for a mechanism to determine, among those persons currently occupying payroll officer roles, who is offered a role.
    • 39. That construction is evident from the following textual and contextual matters:
      • (a) The process in clause 5 is to be applied after the Voluntary Redundancy Substitution process set out in clause 4 has been considered. Clause 4(a) refers to or defines the Voluntary Redundancy Substitution process whereby a “potentially redundant” officer – picking up it is submitted clause 2 of Schedule 3 – may exchange positions with another, but only where their skills “are a close match”. The Voluntary Redundancy Substitution process essentially has the effect of abolishing the role that is effectively “swapped” out, and thus reducing the number of excess positions.
      • (b) The heading of clause 5 is instructive in that it is for the: “Identification of individual officers from an impacted group of officers”. It can be seen that the process in clause 5(b) is directed to dealing with a situation or circumstance that the Voluntary Redundancy Substitution has not satisfactorily ameliorated; being where the number of roles available is fewer than the officers occupying those roles.
      • (c) Clause 5 is expressed as operating in specific circumstances, that is “in any situation where the number of roles available is fewer than the officers occupying those roles”. This makes it clear that clause 5 does not apply in every circumstance of a potentially redundant officer.
      • (d) The reference in the last sentence of clause 5(b) to an officer not having to make a formal application for “their existing role” only makes sense if that role will continue to actually exist. That is only likely to be the case in a circumstance where there is more than one officer performing the same role and a decision has been made to keep one or more (but not all) of those roles.
    • 40. Expressed differently, clause 5 provides for a mechanism whereby CSIRO can determine who is to be offered a role where there are an excess number of persons who are currently performing that ro.
    • 41. Clause 5 did not apply in this case. Dr Jermiin's role was not one that was performed by a group of employees in CSIRO. The Business Case makes clear that with respect to the Phylogenomics capability, there was only one role (being Dr Jermiin's role). That role was identified to be abolished. In the terms of clause 5(b) of Schedule 3, Dr Jermiin did not have to consider applying for his existing role because it did not exist as a consequence of the decisions made to give effect to the announcement of 4 February 2016.
    • 42. Accordingly, clause 5 of Schedule 3 had no application to Dr Jermiin and did not define redundancy in Dr Jermiin’s circumstances (AS[4],[15]). On that basis alone, Dr Jermiin’s claims fail and the Proceedings should be dismissed.
    • CSIRO satisfied the requirements of clause 5 in substance in any event
    • 43. Even if clause 5 was found to apply to Dr Jermiin's circumstances (which is denied), CSIRO submits that it has in substance undertaken the activities contemplated by clause 5. In particular:
      • (a) it conducted an assessment of Dr Jermiin's position (along with each other position in ECMT) against CSIRO's organisational requirements;
      • (b) it afforded Dr Jermiin procedural fairness and provided him with an opportunity to provide information that may be relevant to CSIRO’s assessment, including by meeting with Dr Jermiin to obtain feedback on the assessment and providing him with an opportunity to provide written information;
      • (c) Dr Jermiin provided information to CSIRO for its consideration, including multiple business cases; and
      • (d) it considered the information provided by Dr Jermiin and made a final decision that Dr Jermiin was potentially redundant.
    • 44. Accordingly, even if clause 5 of the Agreement applied to Dr Jermiin's circumstances, CSIRO has not contravened that provision.
    • Any relief would be limited
    • 45. Although CSIRO submits that the Court will not be called on to determine the issue of compensation, if the Court finds that clause 5 of Schedule 3 did apply to Dr Jermiin’s circumstances and CSIRO did not comply with the requirements of that clause, any entitlement to relief would be limited for the following reasons.
    • 46. Firstly, the evidence demonstrates that, as a matter of fact, CSIRO had no ongoing organisational requirement for Dr Jermiin’s position arising out of the changes implemented to give effect to the 2020 Strategy. Whichever way one approaches it, Dr Jermiin was potentially redundant arising out of the 2020 Strategy in any event.
    • 47. Secondly, claims with respect to clause 5 of Schedule 3 would only constitute a claim for a contravention of the Agreement. It would not have rendered Dr Jermiin’s termination/retrenchment void or invalid (Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 426 - 429 (per Brennan CJ, Dawson and Toohey JJ); at 453 – 457 (per McHugh and Gummow JJ)).
    • 48. Thirdly, whilst the Court has a broad discretion under s.545 of the FW Act, such orders must be directed to, among other things, addressing or remedying the effects of a contravention (Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) (2018) 262 CLR 157 at [25], [104]). The Court is only entitled to order compensation under s.545(2)(b) of the FW Act for loss that is established by an applicant (Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526 at [423] per Barker J; Dafallah v Fair Work Commission (2014) 225 FCR 328 at [162] – [164],[175]).
    • 49. In this case, any such contravention would have been of a procedural nature and not substantive. As such, any relief would be measured in weeks of compensation and not any alleged losses referable to the termination of employment on the ground of redundancy as sought by Dr Jermiin. When assessing the amount of any compensation, it is relevant for the Court to take into account that Dr Jermiin remained in employment for a lengthy redeployment period (which was extended beyond the period required by the Agreement), and that the extended redeployment period did not result in the identification of a suitable alternative position for Dr Jermiin.
    • Disposition
    • 50. The Proceedings should be dismissed.

Outline of principle

86. There is a significant body of jurisprudence regarding the construction and interpretation of industrial instruments, in which term must be included enterprise agreements of the kind currently under consideration.^[24] For immediate purposes, it is sufficient to note the following general principles.
87. First, in Amcor Limited v Construction, Forestry, Mining and Energy Union (“Amcor”), the High Court (Gleeson CJ and McHugh J) said, at [2]:^[25]
    • The resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose, and the nature of the particular organisation.
88. Secondly, in Amcor v CFMEU, at [96], Kirby J referred to a long-cited passage from the Federal Court decision in Kucks v CSR Ltd (“Kucks”) (Madgwick J) (emphasis added):^[26]
    • It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
89. I note that in Transport Workers’ Union v Coles Supermarkets Australia Pty Ltd (“TWU v Coles”), the Full Federal Court referred to this same passage from Kucks, but noted in particular a less regularly cited passage that immediately follows it, thus (emphasis added):^[27]
    • But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.
90. Thirdly, still in AMCOR v CFMEU, at [97], Kirby J observed that it was appropriate to consider the agreement before the High Court using a “broad interpretation” but at the same time cautioned that a more precise document, with a different context, history and purpose, may give a different result. Purposefully, Kirby J stated, at [97] (emphasis added):
    • In a more precise document, with a different context, history and purpose, the opposite conclusion might be reached. But giving this document the broad interpretation that is appropriate to a certified agreement under the Act, the submission advanced by Amcor is acceptable. But does it represent the preferable construction?
91. Fourthly, admittedly in the context of contract law and agreements generally, in Toll (FGCT) Pty Limited v Alphapharm Pty Limited (“Toll v Alphapharm”), the High Court said, at [40] (internal citations omitted; emphasis added):^[28]
    • This Court, in Pacific Carriers Ltd v BNP Paribas, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.
92. Most recently, in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited (“Qantas Airways”), reflecting principles generally from earlier decisions, the Full Federal Court said, at [99] (emphasis added):^[29]
    • The principles to be applied in interpreting an enterprise agreement were summarised in WorkPac Pty Ltd v Skene (2018) 264 FCR 563 at [197]. They emphasise the practical character of such instruments which are to be read in a manner that is informed by the circumstances of the relevant industry rather than according to legal nicety.
93. In relation to the jurisprudence concerning “redundancies”, the following overview will suffice.
94. In Dibb v Federal Commissioner of Taxation (“Dibb”), the Full Federal Court (Spender, Dowsett and Allsop JJ), set out at some length, the basic principles to determine whether a redundancy was “genuine”.^[30] The decision in Dibb was in the context of a dispute regarding the characterisation of a termination payment, for the purposes of s.27A of the Income Tax Assessment Act 1936 (Cth) (“the ITA”), following the termination of employment and whether it was a “bona fide redundancy.” The Full Court’s main point of reference regarding what was and what was not a “genuine redundancy” was the earlier Full Federal Court decision in Short v FW Hercus Pty Ltd (Keely, Burchett and Drummond JJ).^[31] It was not disputed in Dibb, at [33], that there was no definition of “redundancy” in the ITA. At [33] – [37] and [41] – [42] in Dibb, the Full Court said:
    • [33] ... there is no definition of the term "redundancy" [in the ITA Act]. The word is often used in the context of industrial relations to describe benefits payable in certain circumstances pursuant to industrial legislation and/or awards. However we do not understand Mr Dibb to claim any such entitlement. Paragraph 42 of TR 94/12 (cited above) refers to the decision of this Court in Short v F W Hercus Pty Ltd (1993) 40 FCR 511. That decision relied heavily upon an earlier South Australian decision, R v Industrial Commission (SA); Ex parte Adelaide Milk Supply Co-operative Ltd (1977) 16 SASR 6. In Short, at 520-521, Burchett J said:
      • ‘The starting point may be taken to be the decision of the Full Court of the Supreme Court of South Australia in R v Industrial Commission (SA); Ex parte Adelaide Milk Supply Co-operative Ltd (1977) 16 SASR 6, although it would certainly be possible to go back much further. The Supreme Court of South Australia was concerned with the question of the jurisdiction of the State’s Industrial Commission to make provision by award for redundancy. There was no issue about the substance of the proposed provision, but members of the court made clear their understanding of what was involved. It is convenient to look first at the judgment of Mitchell J, who cited (at 34) the following statement from a decision in the previous year of the New South Wales Industrial Commission:
        • "It can fairly be said that in industrial circles the term redundancy payment has come to mean compensation for losses of various kinds suffered by employees who have given substantial services to an employer and whose services are terminated because, for one reason or another, the employer no longer needs them."
      • Mitchell J accepted this statement. Bright J, who dissented on the jurisdictional issue, said (at 26-27):
        • "The word ‘redundant’ does not occur in the Act. In its industrial sense it is not defined in the Oxford Dictionary. The application which I have already set out attempts the definition for the purpose of the proposed award. A consideration of the cases leads me to think that the question of the redundancy of any employee is linked to the question of the continued utility of the job which he is performing. In other words it does not relate to the personal competence of the employee in the job which he is performing. If I am right in this, then in its widest form the concept of redundancy connotes that an employee becomes redundant whenever (and for whatever reason) his employer no longer desires to have performed the job which that employee was doing. A wide variety of instances are contained in the definition clause in the application but they all seem to fit into this connotation, even the reference to retrenchment of employees for any reason whatsoever."
      • The definition clause to which Bright J referred embraced (as appears at 16) dismissal by reason of diminishment of the requirements of a business for work of particular kind through:
        • "technological automation, mechanisation change, reorganisation, rationalisation or centralisation in the processing industry; fall in demand of products for whatever reason; or retrenchment of employees or an employee for any reason whatsoever."
      • It was in connection with this statement of Bright J and the passage quoted by Mitchell J (to each of which he referred at 8-9) that Bray CJ made (at 8) a statement that has since become in part embedded in a number of awards, including the subject award:
        • "I should begin by saying that I agree with Bright J that the concept of redundancy in the context we are discussing seems to be simply this, that a job becomes redundant when the employer no longer desires to have it performed by anyone. A dismissal for redundancy seems to be dismissal, not on account of any personal act or default of the employee dismissed or any consideration peculiar to him, but because the employer no longer wishes the job the employee has been doing to be done by anyone."
      • Here the expression containing the words "no longer wishes" was first composed. In its original setting, it is plain that it was not meant to convey the limitation for which the respondent contends. On the contrary, it was meant to capture the full breadth of the concept elaborated by Bright J and referred to in the passage quoted by Mitchell J.’
        
    • [34] We note also the observations of Ryan J in Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308 as follows:
      • ‘However, it is within the employer’s prerogative to rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. It is inappropriate now to attempt an exhaustive description of the methods by which a reorganization of that kind may be achieved. One illustration of it occurs where the duties of a single, full-time, employee are redistributed to several part-time employees. What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant in the sense in which the word was used in the Adelaide Milk Co-operative case.’
        
    • [35] Similarly in Quality Bakers of Australia Ltd v Goulding (1995) 60 IR 327, Beazley J said at 332-333:
      • ‘There was no dispute that "the operational requirements" of a business may include redundancy. A redundancy will arise where an employer has labour in excess of the requirements of the business; where the employer no longer wishes to have a particular job performed; or where the employer wishes to amalgamate jobs.... As was said in Bunnetts’ case (Bunnett v Henderson's Federal Spring Works Pty Ltd) (1989) AILR 356:
        
        • "Organisational restructuring may result in a position being abolished and the functions or some of them being given to another or split amongst others." ’
          
    • [36] The Macquarie Dictionary (3^rd Ed) now relevantly defines "redundant" as meaning:
      • ‘... denoting or relating to an employee who is or becomes superfluous to the needs of the employer ... .’
        
    • [37] In the Oxford English Dictionary (2^nd Ed) the word is defined relevantly as:
      • ‘The condition of having more staff in an organization than is necessary. Hence, the state or fact of losing a job because there is no further work to be done; a case of unemployment due to reorganization, mechanization, loss of orders, etc.’
    • ...
    • [41] In Jones, Ryan J observed that a job involves ‘a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer’s organisation, to a particular employee.’ We accept that view. Ryan J then observed that where such duties are re-assigned, the question is whether any function or duty remains to be performed by the employee. We do not understand his Honour to have meant that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant. His Honour’s meaning appears clearly from the following paragraphs at 308-9:
      • ‘In this case, the respondent led evidence of the major changes which were made to the Department between September 1993 and late 1994. According to Mr Downie, the applicant’s former position as Director, Mining Inspectorate, was abolished and the duties attached to it were combined with those of the previous Director, Environmental Management. In addition to a number of other, newly-created functions, those pre-existing duties were to be performed by a newly created General Manager, Mineral Operations. Thus, it is clear that although some of the tasks previously assigned to Mr Jones still had to be carried out, the employer’s rearrangement of its operational structure had the consequence that they be combined with other functions and performed by the holder of a new, more generally-oriented position.
        
        On this basis, it appears that Mr Jones’ former position was rendered "generally redundant". When it became apparent that he could not be redeployed, Mr Jones was found to be surplus to the respondent’s personnel needs. This amounted to a reason for dismissal which was clearly based on his employer’s operational requirements.’
        
    • [42] As Beazley J observed in Quality Bakers:
      • ‘A redundancy will arise where an employer has labour in excess of the requirements of the business; where the employer no longer wishes to have a particular job performed; or where the employer wishes to amalgamate jobs ... .’
95. Perhaps curiously, perhaps not, there was no consideration by the Court because neither party raised it, of s.389 of the Fair Work Act 2009 (Cth) (“the FW Act”) and its definition of “genuine redundancy.” Nothing turns on this lacuna. In this regard, for completeness, I simply refer to (but need not consider further) the detailed discussions in Hodgson v Amcor Ltd regarding the general definition and understanding of “redundancy” under the FW Act, and more particularly the consideration of “genuine redundancy” under s.389 of the FW Act by the Full Federal Court in Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union.^[32]

Consideration & disposition

96. In the light of the factual matters canvassed earlier in these reasons, considered in the light of the principles outlined above, I make the following findings and determinations.
97. First, the Respondent made a determination, based essentially on economic or commercial considerations, to re-structure its operations. This re-structure necessarily involved changes in its workforce, including a series of redundancies across a significant number of its Departments. One of the Departments or sections directly affected by this re-structure and its consequential loss of officers was Land and Water. The Applicant was an officer within that Department or section.
98. Secondly, in early 2016, this change in policy and the general details of the re-structure were communicated throughout the CSIRO and its staff at all levels. The Applicant was notified, as detailed earlier in these reasons, that he was (a) likely to be a relevantly affected (or “impacted”) officer, and (b) ultimately, he was advised that his position was surplus to the new requirements of CSIRO. Attempts to redeploy him were ultimately unsuccessful.
99. Both under his original 2008 contract of employment, or under the EA, “redundancy” was stated to be a recognised ground for the end of the employment relationship between the Applicant and the Respondent.
100. I turn now to the specific questions/issues raised by both parties. For ease of reference, I will use as the point of reference the “issues” as proposed by the Applicant. This is in circumstances where, in my view, the issues to be determined are essentially the same but simply drafted slightly differently by each party. Also for ease of reference, I set them out again, thus:
     1. Did Schedule 3 of the Enterprise Agreement have the effect of varying the applicant’s contract of employment regarding termination for redundancy?
     2. Was CSIRO required to comply with clause 5 of Schedule 3 in order to terminate the Applicant’s employment on the grounds of redundancy?
     3. Did CSIRO comply with clause 5 of Schedule 3 and in particular:
        • (a) did the responsible Line Manager (Dr Greg Davis) both purport to and in fact carry out the assessment required by clause 5(b)?
        • (b) did Dr Davis purport to determine that there was no ongoing organisational requirement for the Applicant’s skills as referred to in clause 5(c) of Schedule 3?

(c) was it in fact the case that there was no ongoing organisational requirement for the applicant’s skills at CSIRO?

• 4) What is the proper measure of compensation, whether for breach of contract or pursuant to s 545 of the Fair Work Act 2009 (Cth)?

101. Issue 1: Did Schedule 3 of the Enterprise Agreement have the effect of varying the Applicant’s contract of employment regarding termination for redundancy? Answer: yes. This was so for the following reasons. ^[33]
102. There was no suggestion that the CSIRO Enterprise Agreement 2011 – 2014, was not regularly approved pursuant to Part 2-4 of the FW Act, and/or that it was not otherwise operative upon its commencement on 7^th July 2011.
103. There are two possible routes regarding (a) the interface between the Applicant’s contract of employment and the EA, and (b) the consequences thereof in relation to the Applicants’ redundancy. The first, and in my view, the most appropriate pathway to resolve the first question, is as follows.
104. I need also to stress that in the following discussion, and ultimately in the consideration and determination of the specific issues as propounded by the parties, the analysis of the contract of employment and the EA are undertaken in the light of the earlier detailed principles including Amcor, Kucks, TWU v Coles, and Dibb.
105. In Ansett Transport Industries (Operations) Pty Ltd v Wardley, Wilson J said (emphasis added):^[34]
     • It will be seldom, in my opinion, that an award will lend itself to the "covering the field" test of inconsistency on the subject of the contract of employment. Few, if any, awards reflect an intention to express completely, exhaustively or exclusively the law governing that contract between the parties. It will generally be a case of specific provisions which will, of course, have the effect of rendering inoperative any provisions of subordinate law, whether common law or statutory, touching that employment with which they are inconsistent. In Reg. v. Industrial Court of South Australia; Ex parte General Motors-Holden's Pty. Ltd. (1975) 10 SASR 582, at p 599 Walters and Wells JJ., in a passage with which I respectfully agree, discuss the relationship of an award to the common law and to statute law and refer with approval to the following passage from Webb: Industrial Relations and the Contract of Employment (1974), p. 21:
       
       • "The significance of the common law can be recognised if contracts of employment are seen to be stratified. First there is a foundation strata being the common law. Superimposed on this are State Acts, regulations and State industrial determinations; in places such State law cuts through and replaces the common law foundational strata. Above this again are Commonwealth Acts, regulations and awards of the Arbitration Commission. Federal law cuts through State law in places, sometimes at the point where State law has already cut through common law, sometimes direct into common law."
106. Next, in Byrne v Australian Airlines Ltd, the plurality recognised the distinction between rights and entitlements under a contract of employment, on the one hand, and other rights and entitlements under, for example, an award, on the other.^[35] The plurality (Brennan CJ, Dawson and Toohey JJ) also noted, (at p.420; internal citations omitted; emphasis added):
     • A right to the payment of award rates is imported by statute into the employment relationship, which is contractual in origin, and, express promise apart, it is only in that sense that it can be said that award rates are imported into the contract of employment. The award regulates what would otherwise be governed by the contract. But award rates are imported as a statutory right imposing a statutory obligation to pay them. The importation of the statutory right into the employment relationship does not change the character of the right. As Latham CJ points out in his judgment in Amalgamated Collieries of WA Ltd v True, the legal relations between the parties are in that situation determined in part by the contract and in part by the award. And as the judgment of the Privy Council in that case suggests, a provision in an award may also be made a term of the contract by agreement between the parties, but that is only to emphasise the distinction between an obligation imported by statute and one arising by agreement.
107. Towards the end of their Honours’ judgment, they noted (p.429; emphasis added):
     • Termination of employment in breach of cl 11(a) is, of course, a breach of the award, but since cl 11(a) is not, unless made so, a term of the contract, it is not a breach of contract. It is a different question whether a dismissal, if wrongful, otherwise amounts to a breach of contract sounding in damages....
108. More recently, the Full Federal Court in Soliman v University of Technology, Sydney (No.2), set out the following matters regarding the interaction between an industrial agreement and a contract of employment.^[36]
109. At [22], the Court (Graham, Logan and Flick JJ) said (emphasis added):
     • In relation to a pre-reform certified agreement serving as an underpinning instrument, such a situation was considered by a Full Court of this Court in Quickenden v O’Connor [2001] FCA 303; (2001) 109 FCR 243 At [69] Black CJ and French J, as his Honour then was, said:
       • ‘The broad brush complaint that common law contractual rights were displaced by the certified agreement faced another threshold issue. For while the agreement bound Dr Quickenden by force of law, it did not thereby terminate his contract of employment. It created rights and obligations which were statutory in character and could operate in addition to the rights and obligations under his contract and, where inconsistent, no doubt displace them. There is nothing in the agreement however which expressly sets aside or displaces the terms of existing or common law rights generally. The agreement itself is not, on the face of it, and is not expressed to be, exhaustive of the rights and duties of those bound by it. If anything it focuses upon the rights of employees, rather than their obligations.’
110. Then at [23], the Full Court noted:
     • In his reasons for judgment Carr J said at [131]:
       • ‘... As the High Court of Australia explained in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 420 – 421 an award imposes certain statutory terms and conditions which do not necessarily displace underlying common law contractual relations. If they conflict, the award or certified agreement may modify the contractual provisions, but otherwise they continue to co-exist. Byrne involved an award, but there does not seem to be any relevant distinction, for present purposes, between an award and a certified agreement. ...’
111. For current purposes, what is of particular significance is that, at [24], the Full Federal Court said:
     • The same principles are applicable to the relationship between a common law contract of employment and a union collective agreement under the Act.
112. I will shortly return to these principles because I will now outline a possible alternative jurisprudential route, albeit that the terminus of it, in my view, is the same end-point achieved by following the principles noted above from Wardley, Byrne and Soliman. It will be recalled already from his submissions that the Applicant relied upon these three cases to which I have just referred.
113. In Concut Pty Ltd v Worrell, the High Court considered a situation of a termination of employment and a claim for breach of contract that also involved a service agreement.^[37] At [17], the members of the plurality (Gleeson CJ, Gaudron and Gummow JJ) said by reference to, among other decisions, Byrne v Australian Airlines Ltd (other internal references omitted; emphasis added):
     • The issues which must be determined are to be understood in the context of the law respecting employment relationships. It would be unusual for this to be purely contractual. Statute may impose obligations to observe industrial awards and agreements, and in some instances the relevant terms of the employment relationship may be found in the industrial award which binds the parties at the relevant time...
114. Then at [21], their Honours said (emphasis added):
     • The Service Agreement recited that Mr Wells was an employee of Concut and manifested no intention to displace rights and liabilities which had accrued between the parties since Mr Wells had become the Queensland Branch Manager in 1980 by releasing or compromising those rights and liabilities. Rather the employment relationship continued but was supplemented by the terms of the Service Agreement....
115. By parity of reasoning, it might reasonably be said that in the circumstances of the current matter, the EA simply “supplemented the terms of the [employment contract].” It is clearly correct that a service agreement is significantly different from an enterprise agreement. It was never argued that the Applicant’s contract of employment was ended by operation of the EA, or that it was relevantly varied. On the authority of Concut Pty Ltd v Worrell, in my view it is more than arguable that the EA “supplemented” the existing employment relationship between the parties. This is especially so because of the single sentence reference in the contract of employment at clause 7(b)(iv) about “redundancy.”
116. The same result regarding the employment relationship between the Applicant and the Respondent, in my view, is arrived at via the principles set out above in Wardley, Byrne, and Soliman. This is to say that, in my view, (a) the contract of employment between the Applicant and the Respondent, dated 16^th December 2008 (executed by the Applicant at the end of that month), remained in place, (b) that contract of employment did not, however, stand removed or isolated or quarantined from, and unaffected by, the EA that commenced on 7^th July 2011, and (c) the EA necessarily supplemented the contract of employment.
117. A fortiori, the contract of employment was relevantly varied (or supplemented) by the EA, precisely because Clause 12 of the contract referred specifically to the Applicant’s appointment being “subject to and governed by ... (c) relevant present or future legislation, Awards and Certified Agreements that are binding on CSIRO.” As earlier observed, for reasons unexplained, neither party referred to, or relied upon, Clause 12(c) of the contract of employment.
118. For these reasons, the contract of employment between the parties was relevantly varied, or more accurately, supplemented by the terms of the EA, including Schedule 3.
119. Issue 2: Was CSIRO required to comply with clause 5 of Schedule 3 in order to terminate the Applicant’s employment on the grounds of redundancy? Answer: yes.^[38] This is so for the following reasons.
120. I refer to but need not repeat the discussion in answer to Issue 1. That discussion and determination remains apposite to the determination of Issues 2 and 3.
121. Clause 7(b)(iv) of the contract of employment between the parties, as earlier set out, simply provided that the Applicant’s employment may be terminated “by CSIRO in the event of ... (iv) redundancy (ie your becoming excess to CSIRO’s staffing requirements)...” Its singularly spare drafting necessarily required, to speak somewhat colloquially, some flesh to be put on the skeletal terms of the contract. In a manner of speaking, that enfleshment came via the EA. Put another way, the contract gave no details, let alone any guidance, as to how the process of “redundancy” referred to in the contract would or should be carried out. Such process as there was in the EA was set out in Schedule 3, clause 5 in particular. To say that there were infelicities, if not discernible ambiguities, in the terms used in Schedule 3 are the matters that concern Issue 3.
122. Issue 3: Did CSIRO comply with clause 5 of Schedule 3 and in particular:^[39]
     • (a) did the responsible Line Manager (Dr Greg Davis) both purport to and in fact carry out the assessment required by clause 5(b)?
     • (b) did Dr Davis purport to determine that there was no ongoing organisational requirement for the Applicant’s skills as referred to in clause 5(c) of Schedule 3?
     • (c) was it in fact the case that there was no ongoing organisational requirement for the Applicant’s skills at CSIRO?
123. The short answer to each of the matters set out by the Applicant under “Issue 3” is “yes.” I say that for the following reasons.
124. Again, I will not repeat the consideration of the evidence outlined earlier in these reasons. Summarised, that evidence, both oral and documentary, in my view, plainly established that Dr Davis was the relevant Line Manager for the purposes of Clause 5 of Schedule 3 of the EA. It also plainly established that Dr Davis, along with relevant consideration by, among others, Dr Hardisty and Ms Rogers, (i) was/were cognisant of, and sought to apply, the new (or renewed) policy of the CSIRO that emphasised the need for relevant external funding sources, and (ii) did so specifically in relation to the circumstances and capabilities of the Applicant.
125. The consideration by Dr Davis of the Applicant’s capabilities, and likewise by Dr Hardisty (and others noted in the documentation referred to earlier in these reasons and set out in the Court Book), confirmed that there was no ongoing organisational requirement within the CSIRO for the Applicant’s skills as referred to in Clause 5(c) of Schedule 3. It was the confluence of the CSIRO’s publicly stated policy emphasis (by Dr Marshall) upon external revenue sources, on the one hand, and the determination that the Applicant did not relevantly meet this particular requirement, on the other, which led Dr Davis, confirmed by Dr Hardisty, to the conclusion that the Applicant (together with a significant number of other officers employed by CSIRO in a wide range of departments or sections of the organisation) were excess, or superfluous to the CSIRO’s organisational requirements.
126. In the light of the Court’s conclusions and responses to the issues identified by the parties and set out above, it is unnecessary to answer Issue 4 regarding compensation.

Conclusion

127. The law regarding employment relationships regularly, as it does in the current proceeding, involves the inter-relationship between rights under contract and rights under any industrial agreement, such as the EA here. (Byrne v Australian Airlines Ltd; Concut Pty Ltd v Worrell; Amcor; Wardley; Soliman).
128. The resolution of the terms of such an agreement is to be understood and determined according to the agreement in question, and in the light of its industrial context and purpose. Pedantic approaches to the interpretation of relevant agreements and the like are to be avoided. (Amcor, Kucks, AWU v Coles).
129. A contract of employment may relevantly be “supplemented” by the terms of an industrial agreement (Concut Pty Ltd v Worrell).
130. Here, the contract of employment between the parties was supplemented by the EA. Given how “spare” or sparse the terms of the contract of employment were, necessarily and by reference to the industrial situation at the time the EA came into force in 2011, the contract of employment was supplemented by the EA. This was reinforced by the terms of clause 12 of the contract of employment, which specified that the contract was “subject to and governed by ... (c) relevant present or future legislation, Awards and Certified Agreements that are binding on CSIRO” (emphasis added).
131. Leaving to one side any discussion of “genuine redundancy” under the FW Act (s.389), relevant principles that apply in situations of termination of employment because of redundancy are set out in Short v Hercus Pty Ltd and Dibb. Those cases, together with the comments by Mason J in Wardley, confirm that (a) redundancy does not relate to the personal competence of the individual (or individuals) involved, and (b) matters of management, management policy and reorganisation are recognised grounds for redundancy. The same cases (and the authorities referred to in those decisions) make plain that “operational requirements” of a business may include redundancy.
132. Finally, to repeat what I have stated earlier in these reasons, the Respondent made a determination, based on economic and commercial considerations, to re-structure its operations. This re-structure necessarily involved a change in its workforce, including a series of redundancies across a significant number of its Departments. One of the Departments or sections directly affected by this re-structure with its consequent loss of officers was Land and Water. The Applicant was an officer within that Department or section.
133. In early 2016, this change in policy, and general details of the re-structure, was communicated throughout the CSIRO and its staff at all levels. The Applicant was notified, as detailed earlier in these reasons, that he was (a) likely to be a relevantly affected (or impacted) officer, and (b) ultimately, he was advised that his position was, effectively, surplus to the new requirements of CSIRO. Attempts to redeploy him were ultimately unsuccessful.
134. The process undertaken by Dr Davis, which involved others such as Dr Hardisty (with advocacy on the Applicant’s behalf by Dr Oakshott), in my view, clearly sought to implement the economically rationalist management policy of the CSIRO that emphasised the singular importance of external revenue sources. This ultimately led to a series of redundancies throughout the CSIRO, across a range of sections or departments. The Applicant was one of the CSIRO’s many officers who was relevantly affected or “impacted” by the implementation of this management policy.
135. In my view, Dr Davis (and Ms Rogers), among others, relevantly carried out the assessment required under Schedule 3 of the EA in relation to the Applicant. There was no detail in either the contract of employment, or in the EA, that prescribed what was to be done, or how the assessment was to be conducted, by the relevant Line Manager, other than in the most general terms. The Line Manager here, Dr Davis (aided by others), came to the conclusion, after attempting to find a position for the Applicant via the process of redeployment, that there was no ongoing organisational requirement or position within the CSIRO available to the Applicant. As such, his redundancy was confirmed. The assessment was undertaken by Dr Davis as outlined in his Affidavit and in his oral evidence set out earlier in these reasons.
136. The Applicant was afforded procedural fairness, as required under the EA, as also outlined earlier in these reasons.
137. Because of the reasons set out above, and because of the specific issues identified by both parties, I do not need to make any determination on the subtle argument in the Respondent’s submissions (pars.38 – 42) regarding how or why certain parts of Schedule 3 of the EA do not (or did not) in fact apply to the Applicant. That said, in addition to my own reasons, subject to the qualification just made, otherwise I accept and adopt the submissions of the Respondent, including the submission that Schedule 3 of the EA did not in fact specify any particular process to be followed in cases of redundancy.
138. In my view, the processes undertaken by and on behalf of the CSIRO to give effect to the economically-driven management policy announced by Dr Marshall in early 2016, and the resulting personally and professionally unfortunate and regrettable determination of the Applicant’s redundancy (doubtless the same regret and human toll on the Applicant was felt similarly by all other officers made redundant at CSIRO), (a) complied with the terms of the EA (as a supplement to the contract of employment), and therefore (b) does not give rise to any relief (including compensation) for the Applicant. Accordingly, the Amended Application, filed 10^th May 2019, must be dismissed.
139. As a matter of formality, because of the nature of the claim and the relevant references to relief sought under the FW Act, in my view it is apposite that there be a further Order that there be no Order as to costs.

I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of Judge W J Neville

Associate:

Date: 25 March 2021

---

^[1] The Applicant’s curriculum vitae is located behind Tab 37 of the Court Book (“CB”).
^[2] The 5 Yearly Review is in CB at 108 – 113.
^[3] CB at 110. The Applicant’s peer-reviewed publications, since 2009, and his single Provisional Patent, is at CB at 112.
^[4] The letter of Appointment, dated 16^th December 2008, with the Applicant’s signature affixed dated 31^st December 2008, is in CB at 80 – 84.
^[5] See CB at 85 – 107.
^[6] See par.12 of the Amended Statement of Claim, and par.12 of the Defence at Tabs 2 and 3 respectively of the CB.
^[7] Among other places, Dr Marshall’s email is extracted at par.16 of the Applicant’s Amended Statement of Claim. CB Tab 2.
^[8] Ibid.
^[9] See CB at Tab 21, 157 – 158.
^[10] See CB at 187 – 189.
^[11] See CB 35, 55 – 56, and 64 – 65.
^[12] See CB 36, 197 – 201, 202, 209 – 213, and 294 – 297.
^[13] Generally, see the documents at CB Tabs 4, 8, 9, 34, 35 and 36.
^[14] CB at 361.
^[15] See Tab 73, CB 410 – 419.
^[16] See CB at 80 – 84. Dr Jermiin signed the contract on 31^st December 2008.
^[17] Schedule 3 of the EA is at CB at 95 – 100.
^[18] Those letters are at CB 217 – 219 (this letter had attached to it a “Redundancy Booklet”); the second letter was at CB 326 – 328.
^[19] Among other documents, see the important albeit brief email from Dr Hardisty to the Applicant, dated 16^th August 2016, at CB 361. This email confirmed that Dr Hardisty had explored other employment options fort the Applicant but none were found. He also confirmed that “external revenue generation” was critical and that “budgetary pressures mean that we must reduce staff. Capability we retain must be tied to expectations of external revenue generation, and in your case this emerged as a key factor.”
^[20] This email is at CB 359 – 360.
^[21] See the email correspondence between Dr Davis and the Applicant at CB 356 – 357.
^[22] See CB 326 – 328. The letter was signed by Dr Hardisty, the Director of Land and Water.
^[23] Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 428.
^[24] In this regard, see the important discussion by Jessup J in NTEU v La Trobe University at [30] regarding various legal distinctions between “awards and orders, on the one hand, and enterprise agreements, on the other.” In my view, noting that his Honour was in dissent in the result, nothing set out in the paragraph cited relates to the issues currently before this Court. National Tertiary Education Union v La Trobe University [2015] FCAFC 142; (2015) 254 IR 238.
^[25] Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 (“Amcor v CFMEU”). See also the comments by Kirby J to similar effect, at [77].
^[26] Kucks v CSR Ltd [1996] IRCA 166; (1996) 66 IR 182 at 184. The same passage was also cited by Callinan J in Amcor v CFMEU, at [129]. See also the summary of principle in Australian Manufacturing Workers’ Union v Berri Pty Ltd [2017] FWCFB 3005; (2017) 268 IR 285 at [38], [65], [83] and [113] – [114]. Other regularly cited authorities include: Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447; (2014) 245 IR 394; Transport Workers Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829; (2014) 318 ALR 54; and City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426.
^[27] Transport Workers’ Union v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148; (2014) 245 IR 449 at [39] quoting from p.184 in Kucks.
^[28] Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52; (2004) 219 CLR 165.
^[29] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited [2020] FCAFC 205.
^[30] Dibb v Federal Commissioner of Taxation [2004] FCAFC 126; (2004) 136 FCR 388.
^[31] Short v FW Hercus Pty Ltd (1993) 40 FCR 511.
^[32] Hodgson v Amcor Ltd [2012] VSC 94; (2012) 264 FLR 1 especially at [371]; Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99; (2016) 248 FCR 18.
^[33] Again for ease of reference, I note that Issue 1 as propounded by the Respondent stated: “Did Schedule 3 of the CSIRO Enterprise Agreement 2011 – 2014 vary clause 7(b)(iv) of the Applicant’s contract of employment?” Clause 7(b)(iv) of the Applicant’s contract of employment related to his employment being terminated by the CSIRO in the event of “redundancy.”
^[34] Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8; (1980) 142 CLR 237 at 287 – 288. See also the brief comments by Stephen J at CLR 247, and by Mason J at CLR 259. In the latter instance, in a discussion concerning what was, and what was not, “an industrial matter”, Mason J referred to the “admitted right to dismissal for reasons of redundancy, involving as it does questions of management and managerial policy ....” Matters of “management and managerial policy” cannot, his Honour said, constitute “an industrial matter.”
^[35] Byrne v Australian Airlines Ltd (1995) 185 CLR 410.
^[36] Soliman v University of Technology, Sydney (No.2) [2009] FCAFC 173; (2009) 191 IR 277.
^[37] Concut Pty Ltd v Worrell (2000) 75 ALJR 312.
^[38] As a further aide, Issue 2 as drafted by the Respondent was as follows: “Did clause 5 of Schedule 3 of the CSIRO Enterprise Agreement 2011 – 2014 apply to the Applicant’s circumstances at the times material to the issues in the proceedings?” The same affirmative answer given to the Applicant’s question applies here.
^[39] The Respondent’s Issue 3 was in the following terms: “If the answer to Question 2 is “yes”, was the Respondent required to comply with clause 5 of Schedule 3 in order to terminate the Applicant’s employment on the grounds of redundancy?” Issue 4 in the Respondent’s List of Issues effectively mirrored the Applicant’s Issue 3. The Respondent stated: “If the answer to Question 2 is “yes”, did the Respondent (a) comply with the requirement to conduct the assessment required by clause 5(b) of Schedule 3? (b) determine that there was no ongoing organisational requirement for the Applicant’s skills as referred to in Clause 5(c) of Schedule 3?”