Industrial law - proceeding for whether emplovee who \O CATCHAORDS agreed to payment. due under awara "voluntary retrenchment" retrenchea QUENPIN DERRICK LAWKENCE wv CLUE DEVELOPMEY YS PROPRIETARY LIMITLoU Conciliation and Arbitatton Act CURAM : KEELY J. LATE 2: 10 MAY, 1585 mm H hed cs aa MELBOURNE i904, s. Loy We rc N THO FEDERAL COURT OF AUSTRALIA Na V 27 of 1984 < laa Ca Gel [e) ad HH He i] fet]tl at H ie) Lt at faa] Gd iS EQ | eu ae INDISTRIAL DIVISTON BETWEEN JUENI IN DERPICK LAWRENCE, 'Applicant' AN TI CLUTHA DEVELOPMENT - rT ES uw = fn yyoy OR REASONS FCR CJUCGHMINT The applicant's counsel, Mr. Hecrey, has urced upon the Court m1 very consideration thas cculd be rut in support cf the applicant s claim. However, the ciazim musi fail for reasons which will be apparent fron the difficulties which have been raised with Mr. Heerey during his final address this morning ance this afternoon. Havang regard '<o the lengthy discussion ci those ditticulties that hav taken place, the reasons for dism2zssing the claim neen on:v he stated fairly briefly. The applicant claims that he is entitled to $5,616-00 as "retrenchment pay" from the respondent under clause 28(1) of the Coal Mining Industry (Mechanics) Award, 1982, New South Wales, as amended (the award). In the alternative it 1s claimed that that amount is due undcr an agreement between the applicant anc the respondent, made in December 1982, that his employment would he terminated and that, in the words of paragraph 9 of the statement of claim, "the respondent would pay to the applicant the full retrenchment entitlement prescribed by the award witnout regard to whether the termination of his employment witn the respondent was voluntary or otherwise", It was said that that entitlement was three week's ordinary pav fer each completed year oz employment with tne respondent. Clause 2A(1) of the award, as varied by an order jliiowing prov rl uw t C ~ ti =] fa] aatw oo Lamy B afu ba] et ta i uw iv H fo] ie) b Cc ier t re) ad tv 'D tm c a "28. Severance and Rhetrencnment f' (1) Seuthern and Western District, New South Wales (ad) Subject tc sub-clause (5b) hercof, when a reduction of hands is decided upor ry an employer respondent to this awarad an emplevee whe 1s retrenched shall he entitled to reccive trom his employer severance pay calculated at the rate of one ordinary weesx's pay for each completed year of employmel.t. {c) Subject to sub-clause (d) hereof, when a reduction of hards is decided upon by a employer respondent to this award by reason of technslogical change, market forces or diminution of reserves, an employee notwithstanding the provisions of clause § herein shall receive one month's (four working weeks) natice of retrenchment and in additiscn to the payment required to be made under sub-clause (a) hereof shall he entitled to receive from his employer retrenchment pay calculated at the rate of two ordinary weeks pay for each completed year of service with a minimum payment notwithstanding his length of service of two ordinary weeks pay." 3. The material variation, included in the clause set cut above, introduced sub-clause (c) in that form, and deleted from sub-clause (a) a qualification which limited the entitlement conferred by that sub-clause to employees with at least five years of continuous employment with the employer. Those Variations, ingofar as thev were relevant tu these proceedings, were botn to operate on and from i2 November, 1982 it is common ground that the applicant was pa:d one week's orcirary pay for each completed year and was nut maid any arount under sub-clause Z28/1)(c) of the award. The apriicant, ain order to show nis entitiencne under clause 75! gu te Y(c), had to establish, amonger other thanes, that 'a re@uction of hands' had been deciaed upan py (tne) employe: . In my a ba I Lc Bp ie] m, there 1s ne evidence that a & }-Spordent had s0 aeciured. Mr. Frew, vvro, at the i MATec rd p n i Lo otime, was Management Services Manage. of the respondent was an aimpressive witness ang 2 accept hair evidence that the respondent haa net decided to reduce hands - notwithstanding the gloss thith Me. Heerey thiz morning sought ty place upon tial evidence. FL may be nuted in this connexion, that, on or before 6 December, 1982, the respondent had given an undertaking to the combined mining untons thar at would not retrench employees befure 7 February, 1983 - an undertaking which was later e>tenaed fur six months beyond 7 February, 1983 The applicant was 4 member of the Federal Mining Mechanics esociation of Australasia which was one of the unions which formed the combined mining unions. I accept Mr. Frew's evidence that the applicant was not dismissed by the respondent and that he left ot his own free-will, although, of course, he had been offered, by the responaent, alk inducement to do sa. The applicant gave evidence that, on 8 Decenner, i982, he gave to the respondent an application for "veluntary retrenchment", which he had not Signed until after obtaining the advice of his soliciter as to its meaning. That application, addressed tu the Colliery Manager, Was im the following terms :- "voluntary retrenchment'. on in the knowledge that 1f H at Fecelveé my awarc entitlements severance dare and ale @ weeks pay for each completea as per the hetsre: Burragorangj Comuined Your approval would be appreciated. Yourc faithfully, (Signed) Q. Lawrence" In mv opinion it has not been shown on the evidence that "a reduction of hands" hac been "decided upor by" the respondent at or snortly before the termznation cf the applicant's employment in December 1982. The respondent wished that a reduction in its labour force would occur but on the evidence in my opinion it did not "decide" upon a "yeduction of hands". Instead of so deciding, it oftered to its employees an inducement for them to veluntarily retire - ' h, doubtless hoping Lo avoid having to "decide" upon retrenchments. As the respondent said 1m its letter dated 64 December, 1952 to the combined mining unsons :- "Pinally we formally acknowledce cur aporeciaticn of the co~operation that you anu your colleagues have extended to management in our attempl to avetr rettenchments. (undetlaning added) Accoteangly, claure 28:1l)¢c) in my opirion did noi operate to confer upon the appiicant the right te an agdsrional 'two erdinary weeks pay for each completel year cf employment' W1Th Une respondent. There ar@ two other matters which in my opinion support the conclusion that the applicant did not obtain anv entitlement unecr clause Z8(1L)ic). One 25 that thai 45 varied, should be resé as if tne words "who te retrenched" were iserted ianmediately after the reference ta an employee" in the third line of the print Theat opinior is based upon (1) the construction of clause 2861) ar a whole, (11) the similarity of wording in sub-clauses (a} anc (c) of that clause, (11) the fact that the entatiement —_nde: sub-clause (c) 15 expressed as being "an acdition to the payment required to be made under to sub-clause (a)", and Civ) the use of the words "retrenchment pay' in sub-clause (c), 1n dealing with the employec's entitiement. The ather matter 1s thal clause FFlidt(c), woac. entitled an employee to receive an additiunas "twe weekl ordinary pay for each completed year of empicyment", als, 6. provided that the employee "Shall receive one month's ... notice of retrenchment ».. "3 in the present case there has been no suggestion that the applicant received - or that he was entitled to receive - such @ "notice of retrenchrent". Mr. Heerey has submitted that the aprplivani was 'retrencheda'. He submitted that an clause 28 the wore "yelrenched wa. not Llimated 7 a termination ©, unilaters act of the employer but irclude: any cutting back ct erployment aupyvolving some positive act by the emvloyer, includirg the off:ring, by the emsloyer, of voluntary bo erenchmenc". However, in my spintolh, ain ofeer tc constitute "retrencrment"" within sur-clauce 2ft1,(e) of the award the 'cutting back of employment' must be done '1:rectly Fy tne empicyer s own decision ana sot by the a=cisison of the employee - ever where he so deciée- Uuecarse Fe has Le offered an iarducement to leave nis employment. Jn comsidering whnetne: enployees whe applied to their employers for "voluntary retrenchment" were entitled undcr sub-ciause 76(1)(c) to be paid thrice weeks ordinary pay ror each compieted year cf enployvment (as claimed by the applicant), 1t may be noted that Mr. Heerey told the Court in his opening address that the hearing before the Coal Industry Tribunal, which led to the ansertion of sub-clause 28(1)(c) in the award, took place ain November, and December, 1982. There is no evidence as to what was the claim advanced by the unions in that hearing i.e. the claim to which the variation related. However, there 1s uncon*radicted evidence that, on A 7. » December, 1982 the unions put to the respondent's Management a proposal for (only) "one week's pay for each completed year of service" (which leé tao the "agreement" referred to ip the applicant's application dated 8 December, 1987 - set out earlier in these reasons). It is unlikely that such a proposal would have been advanced to the responeent By the uniors had they, an the hearing in November ara Decerler 1982, been advocating the grant by the T:sbunal of a ciaim by them chav employees who had applied for "voluntary retrenchment" should be entitied to three weeks pay for each completed rear of servire, For those reasons the appsicant's claim to be ent_iled to "retrenchrent pay' by réason o: the provisions o* clause 28(i)(c) of the award cannet succeed. The applicant's alternative ciaim was bascd upon: an aiieged acreement with the respondent. Paragraph Y of the statement of claim stated that c+ was a term of the agreexent that "the Respondent would pay to tle applicant the full retrenchment entitlemert prescribed by the Award without regard to whether the termination of his employment ... waz voluntary or otherwise". However, the applicant's own evicence failed to establish any agreement that he was to be paid additional amounts "without regard to whether the termination ... was voluntary or otherwise". His evidence was that he asked the pay clerk, Mr. Martir. Hiscock, "with regards to the award, if 8. it were to be changed, ... would the changes be honoured, and he agreed that they would be. He said the company would honour the award". Having obta:ned advice trom his solicitor that evening, the applicant on the foliowing day again saw Mr Hiscock. The applicant's evidence was that - "I asked him, again, if +t would be honoured and he azain replied yes, 1t would be". 7 accept the evidence of the applicant, who wae also an amprecs_ve witness, are do not accept tie evidence oF Mr. Hiscock where it conflicts wath that cvader-:. Howeve:, the applicart s evicencte does nol Suppert the a le gation 1. Paragraph 9 of ian the staterer. of claim ar my skinicr. Nor does lt support the particuiars +16 paragrapr 6&6 wi une statement of claim, that "the beplicant a_khec wether ur uct He wale get rae full entlitiemenr for ub flow cn of anv echanues to the Avard and the Pav Clerk ss1iaq ne would. The Respondent': Manager, Mr. Charles was present at che conversatryon and acquiesced in what wa er iw n be ket it o a] fet rh Clern". Tnere was no evidence Q any siaterent using the words "flow on ane there was na €viienre of any "acquiesclence" by Mr. Taylor. In my opinion, assuming tnat Mr. Hiscock had at the time either actual or ostensible authority to speak for the respondent, the appiicant's own evidence does not support the alternative way in which the claim has been put to the Court. 3. As meutzoned eariier, the combined mining unions had put to the respondent a proposa? that anyone whe "wisnec te ieave the company on Lheir own volition shuuld be paid one week for each year of service". That proposal was accepted by the respondent by tetter dated & December, 1962. It 15 true that that letter did mot specifically cay "one weer' but say anstead said "redundancy entitlements ans per tne awatu' and Mt heerey has sought t74 fely upor the were. uy per the awara". However, a&@t tne time of the Jetrer tue award entitlerent for retrenchment under cigase 2701) was mmly oe a:div.ary week S pfay'; Javen the exastence of tiat Awari provisiun aro the fact that thn Preposal pur 7. - Febspundeat by the unions was onivy . 2 One wecrn's puy" per yeer cf service, in my opinion tlhe reSpurvdon.t s letter uf 6 December, 19B2 mist Fe read ay acrceine te poy only one weeks pav per completen year of service o. Lhrge emriryess whoo. accepted for "vclurptary retrenchmentsc'. Accordingly, the application 15 dismissed. - nine t r » ij i fout Keely, % 1 A ; t lo May esr