Jacqueline Woodland v Textile Clothing and Footware Union of Western Australia [1995] IRCA 654

C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - whether EMPLOYMENT CONTRACT for limited period - whether applicant agreed to termination of employment contract. INDUSTRIAL RELATIONS ACT 1988 Ss 170EA JACQUELINE WOODLAND -v- TEXTILE CLOTHING AND FOOTWARE UNION OF WESTERN AUSTRALIA - WI 1771 of 1995 BEFORE: BOON JR PLACE: PERTH DATE: 15 DECEMBER 1995

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 1771 of 1995 BETWEEN: JACQUELINE WOODLAND - Applicant AND: TEXTILE CLOTHING AND FOOTWARE UNION OF WESTERN AUSTRALIA - Respondent MINUTE OF ORDERS BEFORE: BOON JR PLACE: PERTH DATE: 15 DECEMBER 1995 THE COURT ORDERS THAT: 1. The application is dismissed. NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 1771 of 1995 BETWEEN: JACQUELINE WOODLAND - Applicant AND: TEXTILE CLOTHING AND FOOTWARE UNION OF WESTERN AUSTRALIA - Respondent BEFORE: BOON JR PLACE: PERTH DATE: 15 DECEMBER 1995 REASONS FOR JUDGMENT This is an application under Section 170EA of the Industrial Relations Act 1988 relating to the alleged unlawful termination of the applicant by the respondent. The applicant seeks reinstatement and compensation. It is alleged by the applicant that her employment was terminated without a valid reason and that she was not given any opportunity to defend herself against any allegations that may have been relied on by the respondent in terminating her employment. The respondent denies that it contravened the provisions of the Industrial Relations Act. It is the respondent's position that the applicant's employment was not terminated at the initiative of the employer within the meaning of the Industrial Relations Act. The respondent says that the applicant was employed as an enterprise bargain officer under the terms of a specific grant from the Western Australian State Government for that purpose. The grant was due to expire in about September or October of 1995. It is the respondent's contention that when it became apparent that there was a significant degree of conflict between the applicant and the secretary of the respondent, the applicant agreed to leave her employment with the respondent and be paid a sum representing the balance of the monies available under the enterprise bargain grant. The applicant denies that she was employed as an enterprise bargain officer and says that although enterprise bargaining did form part of her duties she was primarily employed as a union organiser. She says that at all times it was the intention of the respondent that she remain fully employed until such time as the secretary of the union retired in early 1996, whereupon the applicant would take over as secretary of the union. BACKGROUND The respondent, the Textile, Clothing and Footwear Union of Western Australia is the state branch of a larger national organisation. The state branch is a separate legal entity from the national organisation. There is also a state union which in turn is separate from the state branch of the federal union. For the past twenty five years the respondent union has been run by its secretary, Ruth Geneff. The applicant, Jacqueline Woodland, is a 55 year old woman who has worked mostly in the clothing industry since she left school at the age of 15. She suffered a neck injury some time ago and was unable to return to her former position as a machinist. On 1 July 1994 she obtained permanent part time employment as a cleaner. Ms Woodland has been associated with the respondent union for about eight years. She has been a shop steward and an occupational health and safety officer. She became a member of the executive of the union eight years ago. She has occupied the positions of trustee, vice president and became president about two years ago. Ms Woodland gave evidence that Ms Geneff rang her at home in early February of 1995. According to Ms Woodland, Ms Geneff said that she wanted to retire in early 1996 and wanted to train Ms Woodland to be her replacement. Ms Geneff said that the union would pay her a weekly wage and 45 cents per kilometre as travel allowance whenever she needed to use her car. Ms Woodland needed time to talk to her family and later told Ms Geneff that she would accept the position and would give a week's notice to her current employer. It is common ground that there was never any contract of employment in writing and Ms Woodland was never provided with any conditions of employment in writing. Ms Woodland gave evidence that she thought she was being employed in a position like an organiser. Once she started her employment, her duties were general and not just related to enterprise bargaining. In support of her contention that she was not employed as an enterprise bargain officer, Ms Woodland points to the fact that she was sent by her employer to several training courses, including one held by the Australian Trades Union Training Authority in relation to prosecution procedures in the Industrial Magistrates' Court and one in relation to organising works and recruitment. Ms Geneff gave evidence that the union had received a grant from the State Minister of Industrial Relations to employ someone to get enterprise bargains in place in workplaces. Prior to February 1995 she had employed two people in the position of enterprise bargain officer and she had some money left over and was looking to employ somebody else to use up that money. Ms Geneff said that she had trained two people already in that position and she didn't want to train somebody all over again. She said she rang Jacquie Woodland, who had extensive experience with the union and told her that there was some grant money left over and asked if she would be interested in enterprise bargaining. Ms Woodland asked how long the money would last for and Ms Geneff said until September. Ms Woodland said that she couldn't work until September as she was going to England in August. Ms Geneff then said that with the superannuation and holiday pay the money would just about run out in August. A few days later Ms Woodland returned her call and said that she would take the position. Ms Geneff said that she did say to Ms Woodland that she anticipated retirement in early 1996 and that Ms Woodland might like to see what the union was about. It was put to Ms Woodland that if she liked working for the union and if she performed well she could consider applying for nomination when Ms Geneff retired in around February of 1996. Ms Geneff is emphatic that the position was offered to Ms Woodland on the basis that it was as an enterprise bargain officer and that it was specifically to last until the money ran out. She said that the union was in a poor financial state and could not afford to employ anyone on any other basis. In relation to the training courses, Ms Geneff said that to do enterprise bargaining properly you have to have a complete industrial knowledge. She wanted to give Ms Woodland some training as to what the inside of a union is all about. She also thought that the extra training would give Ms Woodland more confidence. When Ms Woodland went out to the workplace she expected her to talk to management and to set up consultative committees to conduct enterprise bargaining. Under the union award, enterprise bargaining is to be conducted through consultative committees. Ms Geneff said that most of the training courses Ms Woodland attended were free of charge. She was also interested in getting Ms Woodland out of the office because she found that she talked too much and interrupted Ms Geneff's work. THE WRITTEN CONDITIONS OF EMPLOYMENT Ms Woodland seeks to imply into the contract of employment several terms from a document headed "Wages and Conditions of Employment for Elected Officials and Employees February 1995". Ms Woodland said that although nothing was ever given to her in writing and although she did not see these written conditions until after she left her employment with the union, she had all along assumed that she was covered by some kind of conditions and that these conditions, which became an exhibit at the trial, were the only ones which could apply. Ms Geneff said that there was never any question of those conditions applying to Ms Woodland because Ms Woodland was employed solely on the basis of the enterprise bargain grant money and in any event the written conditions applied only to elected officials and employees of the national body. There is simply no evidence that the parties ever intended that the written conditions would form part of the contract of employment and I reject any notion that they did so.