DECISION NO: 176/96 CATCHWORDS INDUSTRIAL LAW - CONTRACT OF EMPLOYMENT - SPECIFIED PERIOD CONTRACT - whether constituted by "temporary employment" - extensions of temporary employment contracts - amalgamation of Local Councils and effect of new legal entity on temporary employment contracts INDUSTRIAL LAW - CONTRACT OF EMPLOYMENT - requirement of agreement as to TERMS - requirement of mutuality of contractual obligation INDUSTRIAL LAW - ESTOPPEL INDUSTRIAL LAW - AWARD - alleged inconsistency with Local Government Regulation INDUSTRIAL LAW - claim of UNLAWFUL TERMINATION - NO VALID REASON - REDUNDANCY - REINSTATEMENT Industrial Relations Act 1988 (Cth): ss 170ee, 170de(2), 170ha, 170hb, 170jg Local Government Act 1993 (Qld) Industrial Relations Regulations: reg 30b(1)(aa) Local Government (Albert, Beaudesert and Gold Coast) Regulation 1994 Local Government Officers' Award 1992 Termination of Employment Convention Anderson v Umbakumba Community Council (1994) 56 IR 102 Australian Submarine Corporation Pty Ltd (Full Court, Industrial Relations Court of Australia, 26 March 1996) Re Australian Industrial Relations Commission; Ex parte Australian Transport Officers Federation (1990) 171 CLR 216 Byrne & Frew v Australian Airlines Ltd (1995) 131 ALR 422 (1995) 61 IR 32 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Commonwealth v Verwayen (1990) 170 CLR 394 J Evans & Son (Portsmouth) Ltd v Andrea Merzario Ltd [1976] 1 WLR 1078 Iannov v Fowell [1984] 156 CLR 328 Metal Trades Industry Association of Australia v Amalgamated Metal Workers Union (1983) 152 CLR 632 Short v FW Hercus Pty Limited (1993) 40 FCR 511 COLIN CHURCH v GOLD COAST CITY COUNCIL MARIO DUSSEK v GOLD COAST CITY COUNCIL DARREN LACK v GOLD COAST CITY COUNCIL CLIFF RIX v GOLD COAST CITY COUNCIL JOHN SMITH v GOLD COAST CITY COUNCIL QI 95/1249, QI 95/1254, QI 95/1248, QI 95/1251, QI 95/1246 CORAM: MADGWICK J PLACE: BRISBANE DATE: 13 MAY 1996 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY No. QI 95/1249 QI 95/1254 QI 95/1248 QI 95/1251 QI 95/1246 BETWEEN COLIN CHURCH MARIO DUSSEK DARREN LACK CLIFF RIX JOHN SMITH Applicants AND GOLD COAST CITY COUNCIL Respondent CORAM: MADGWICK J PLACE: BRISBANE DATE: 13 MAY 1996 REASONS FOR JUDGMENT MADGWICK J: The nature of the case In these cases the five Applicants seek reinstatement pursuant to s 170ee of the Industrial Relations Act 1988 (Cth) (the Act). It is accurate enough (though not entirely) to say that the Applicants were employed as building inspectors. Their employment by the respondent ended on 28 July 1995. They had been continuously employed by two successive local government entities (both known as the Gold Coast City Council) for varying periods ranging upwards from 14 months. They were called temporary employees. All of them had begun this employment before the end of May 1994. During 1994, if not earlier, there was talk of the amalgamation of the then Gold Coast City Council (I will refer to that entity as "the old Gold Coast City Council") with another local government council, namely, the Albert Shire Council. This was eventually accomplished by the making, in late 1994, of a regulation known as the Local Government (Albert, Beaudesert and Gold Coast) Regulation 1994 (the Regulation) under the provisions of the Local Government Act 1993 (Qld). The new Council was also called the Gold Coast City Council. It began to operate on the "changeover date" which was 22 March 1995, following election of the first new councillors on 11 March. The issues (1) Does the Act apply to the applicants? (a) Were they, when their employment ceased, engaged under a contract of employment entered into after 16 November 1994 for a specified period of less than 6 months (see Reg 30b(1)(aa) of the Industrial Relations Regulations), on account of their allegedly having entered into new fixed-term contracts of employment to run from dates in May 1995 until 28 July 1995? (If so, the applicants would be excluded from the operation of the Act.) (b) Is such a conclusion (that they were so engaged) aided by the asserted novelty of the legal personality of the new Gold Coast Council? (2) If they are entitled to the benefits of the Act, was there a termination of their employment at the initiative of their employer, the respondent? (3) If so, was there a valid reason within the meaning of s 170de(1) for such terminations? (4) If so, was such reason nevertheless harsh, unjust or unreasonable and therefore precluded pursuant to s 170de(2) from being "valid"? (5) If, on account of the answers to (3) and (4), the terminations were unlawful, is reinstatement practicable? (6) If not, what compensation would be called for? (7) Since the case is now caught by the 1995 amendments to the Act, is any relief "appropriate in all the circumstances of the case"? The background of the employment Typically, when the applicants had been appointed, they received a letter in the following (or a similar) form ( I have reproduced that sent to Mr. Church): "Position - Temporary Building Surveyor I have pleasure in advising that approval has been given to employ you temporarily in the above position. Your appointment is subject to the following conditions: 1. Your classification under the Queensland Local Government Officers' Award will be Local Government Officer (Community & Environmental Services Stream), Level 4, Increment 1 ($32,091 per annum). 2. Your commencement date for this position will be Monday, 16 May 1994. Your period of employment will be for approximately six (6) months. ... I take this opportunity to wish you every success in your new position." There were some variations: Mr. Dussek (who was actually appointed to a specialised administrative job supporting the building inspectors) was told that he was being appointed "on a temporary basis pending return of the permanent officer to the position"; Mr. Lack's appointment was said to be "for the duration of approximately twelve (12) months" (emphasis added), and Mr. Smith was told that his was "a temporary appointment for a period of six (6) months only". In every case the applicants were told in writing, sometimes before and sometimes after the stated period or "approximate period" of their initial engagement, that their "period of temporary employment" would be "extended" to some stated date. In some cases there was more than one such extension. In letters advising of extensions, it was stated that previous conditions of service would "still apply" or would "remain the same". It does not appear that any applicant was ever asked to express agreement that his employment would end on the various dates specified by the employer. In each case, the applicant was clearly wishing to have permanent employment. Matters thus proceeded until November 1994. Management thinking was then explained in letters dated 30 November 1994 to those applicants whose stated extensions were then or soon before then due to expire: "Temporary Employment Due to the probability of an amalgamation between the Gold Coast City Council and Albert Shire Council it has been necessary to appoint a number of employees, of which you are one, on a temporary basis. This arrangement will apply until the amalgamation process is finalised. After this the temporary position that you occupy may be made permanent dependent upon the new Council's needs at that time. I have pleasure in advising that approval has been given to extend your period of temporary employment within the Development & Environment Planning Directorate, until 31 May 1995 at which time the position will be assessed. When applying for Council job vacancies it is important to note the following; positions vacant can be filled on a permanent basis by permanent employees only, all other appointments can only be of temporary status. Conditions of application will be clearly outlined on each job vacancy advertisement. Your conditions of employment, as outlined in previous correspondence still apply. Thank you for your contribution to the execution of the functions of the Council. Your commitment by way of your time and energy to your job are appreciated and will reinforce your application if an opportunity to make your status with Council permanent presents itself." Although some only of the applicants were so informed, the inference is available, and I draw it, that the same thinking applied to all of them. It may be noted that: 1) a reason for non-accordance of the benefits of non-"temporary" employment was being offered, 2) that reason was the "probability" of the amalgamation, 3) the "arrangement" of employment "on a temporary basis" would apply until the indefinite time when "the amalgamation process" would be "finalised", 4) a decision on permanent employment was being postponed until at least 31 May 1995, and 5) the good work of the applicants was expressly acknowledged. Steps were taken to bring all of the applicants' "extensions" of employment into step and to expire on 31 May 1995 (except in the case of Mr. Lack whose employment had been said to be for approximately 12 months from 9 May 1994). In January 1995, Mr. Brown the Chief Executive Officer of the old Gold Coast Council wrote to all of his "Departmental Directors" in the following terms: "Re: Temporary Employees The Regulations pertaining to the amalgamation provides that temporary employees engaged for more than one year may only be dismissed within the period of 2 years from changeover day for misconduct or neglect. Any dismissal other than for misconduct or neglect is null and void. Should rationalisation action be commenced within 2 years of the changeover day the new Council must follow the procedure laid down in Section 7 (Rationalisation of Staff) of the "Procedures and Guidelines Used in Major Boundary Reviews". This ensures that temporary employees will be treated in the same manner as permanent employees where the former have completed more than one year's service for the purposes of redundancy." This letter was apparently made generally available to temporary employees. There is every reason to think that Mr. Brown intended that this be so and implicitly authorised it. He had no reason to keep the news from them; it was good news and, at least in the case of the applicants, they were doing important work and were valued as employees. To give them the information in the letter would tend to improve their satisfaction with their employment. Everyone connected with the Council seems to have acted on the basis that the regime set forth in that letter was the one that was in operation. Mr. Lack was put into a training position as from 6 March 1995, a step which could only have made sense if he were going to be employed by the Council for some considerable time to come. As late as 9 June 1995 Mr. Smith was given approval to attend a TAFE course in working hours (itself a privilege more often accorded permanent employees) during the period 23 July 1995 to 23 November 1995. On 28 April 1995, Mr. Hodges, the Director of the Department of Development and Environmental Planning, wrote to all staff in his department (including the applicants) in the following terms: "Re: Staffing Level You will be aware of recent newspaper reports indicating that in view of the substantial downturn in building activity, the Council was considering the need to reduce Building Inspection Staff. A Special Meeting of the Finance Committee was held on 27 April 1995 to receive reports from officers on the current staffing levels and the actions that had been taken to address the reduced level of building activity and the associated reduction in fee revenue. The Finance Committee were advised that the downturn had enabled a shift to be made in the emphasis from development to Forward Planning and to improve customer service and satisfaction levels. Broadskilling has enabled some routine functions to be carried out by all development staff and that this process should continue, especially as all staff would be required if service levels in the former Albert Area were to be brought up to former Gold Coast team levels. Whilst issues such as the level of inspection and the standard of customer service were touched upon, the Finance Committee acknowledged that these are matters for consideration by the Planning and Development Committees and eventual determination by the Council. These issues will be referred to the new CEO and the Council in the near future. The Finance Committee Chairperson, Cllr Alan Rickard, advised subsequent to the meeting that the reports presented had satisfactorily explained the present position and he asked that staff be assumed that there are no plans by the Finance Committee to institute reduction in the level of staffing within the D&EP Department." On 19 May 1995 (5 May in the case of Mr. Lack), Dr. Daines the new Chief Executive Officer of the Council wrote to all of the applicants advising them that their "period of temporary employment" would be "extended" until 28 July 1995. On 19 July 1995, Dr. Daines again wrote to all of them saying: "I refer to Council's letter of 19 May 1995, regarding the duration of your temporary employment. A decision has been taken not to continue your employment beyond the date advised in the above correspondence. As there are no alternative employment opportunities to which you can be redeployed, Council herein confirms that your services will be terminated on Friday, 28 July 1995. In accordance with relevant Award and/or Statutory Regulations all monies due will be paid into your nominated financial institution. I would like to take this opportunity to thank you for the work you have done and wish you all the best in the future." Schedule 1 hereto contains all of the letters to the applicants that were produced in evidence. Award provisions It is common ground that in general the employment of the applicants with the old Gold Coast Council was regulated by a federal award known as the Queensland Local Government Officers' Award 1992. This Award itself superseded other awards and it appears that in Queensland, at least for some classifications of local government employees, there had been federal award regulation since as far back as 1959. That Award provided relevantly as follows. Part V deals with "Terms of Engagement". Clause 26 - "Appointments to Vacancies"- is in the following terms: "26 - APPOINTMENTS TO VACANCIES (a) Simultaneous advertising means: advertising a vacant position to permanent officers of respondents and externally to the public at large seeking applications for the filling of the vacant position by means of appropriate advertisements timed to appear at the same time. (b) All positions classified at the first increment Level 6 of the General Salary Scale and above, may be filled by simultaneous advertising. (c) A respondent desiring to advertise simultaneously to fill a vacancy, other than those listed in subclause (b) above, which has arisen for a position requiring professional or statutory qualifications where the respondent employs only one such officer and where no other suitably qualified person is employed by the respondent may do so upon obtaining the approval of the relevant Union. The response of the relevant Union to a request made under this subclause (c) must be given to the respondent within one (1) working day of the request having been made and should the relevant Union not so respond then the approval of the relevant Union is deemed to have been given. (d) The respondent desiring to advertise simultaneously for any position within their employ and which is not referred to in subclauses (b) or (c) of this Clause may do so upon obtaining the approval of the relevant Union so to do. (e) No permanent position other than those positions referred to in subclauses (b), (c) or (d) including newly created positions, shall be filled by a respondent unless applications are invited first from any interested employees of the respondent regardless of whether such employees are permanent officers or whether they are employed in terms of this Award or any other Federal or State Award; and only in the event of none of such applications being in the opinion of the respondent suitable for appointment to the position shall applications be invited from outside the service of that respondent. (f) When an existing position becomes vacant, a respondent shall within 14 days invite applications for appointment to such position by notice stating: (i) The position to be filled and the salary thereof. (ii) The duties and qualifications required for the position. (iii) When and how applications for appointment to each position are to be made. Such notice shall be posted upon all notice boards at the premises of the respondent at least seven days before the time stated in such notice as the closing date for applications and in such other manner as the respondent may devise to notify the vacancy. (g) All applications shall be acknowledged within seven days and all applicants shall be notified of the result of their applications within two months of the date of advertising the vacancy provided that unsuccessful applicants shall be notified of the appointment made within seven days of making such an appointment." Clause 28 deals with "Temporary Employment" as follows: (a) Except [in immaterial circumstances], no future appointments of temporary officers shall be made for a period exceeding in the aggregate six calendar months within any period of twelve months, and any temporary officers shall be paid at the rate provided for by this award for permanent officers of the same salary level. (b) Provided that employment of temporary officers may exceed six months by agreement between a respondent and the relevant Union. Where the need arises to employ a temporary officer or officers for a period in excess of six months within any period of twelve months, a respondent shall apply in writing ... for approval of the relevant Union of such employment stating the reasons for such application and the circumstances ... ... the relevant Union shall deal with the application expeditiously and convey its decision thereon to the applicant ... Provided that in an emergency a respondent may extend the employment of a temporary officer beyond six months without following the above procedure but shall instead advise the relevant Union immediately of the engagement giving details of the circumstances under which the engagement occurred." ... There seems to have been no compliance or even purported compliance with Clause 28 by either the old Gold Coast Council or the new Council in relation to the employment of the applicants. Other possibly relevant provisions of the Award are those referred to in Schedule 2 to these reasons. The Regulation The Local Government (Albert, Beaudesert and Gold Coast) Regulation 1994 provided for · the abolition of the old "areas" of the two amalgamating councils and the creation of a new "local government area" to be " the City of the Gold Coast": s 5; · fresh elections to be held for the new area: s 9; · the "new local government" to be "the successor of the merging local governments": s 19; · "All assets and liabilities of each merging local government [to] become assets and liabilities of the new local government": s 26; The position of existing employees' rights was otherwise dealt with in the following way: · employees of each merging local government at changeover day were to become employees of the new one: s 50(1); · they were to remain "entitled to all existing and accruing rights of employment": s 50(2); · "officers" - defined, relevantly, as employees other than those "engaged on a temporary basis for less than 1 year"- might be dismissed by one of the merging councils (which would not include the new council) only for misconduct or neglect: s 51; · Employees' rights in relation to rationalisation of work after the amalgamation were provided for in the following sections: Meaning of "continuing employee" in Division 49. In this Division - "continuing employee" means a person who, under this Division, becomes and continues to be an employee of the new local government. Rationalisation of employee because of change 52.(1) In this section - "rationalisation action" means - (a) an appointment of a continuing employee; or (b) the declaration of a continuing employee or a continuing employee's position as redundant; or (c) a redeployment of a continuing employee; or (d) a retrenchment of a continuing employee. (2) If, within 2 years after the changeover day, the new local government starts to take a rationalisation action because of the making of this regulation, the new local government must comply with the process set out in this Division and, subject to this Division, the Guidelines and Parameters for the Rationalisation of Staff set out in section 7 of Attachment O of the report. Process for retrenchment of continuing employee 53. Before retrenching a continuing employee, the new local government must - (a) try to redeploy or appoint the employee to a suitable position; or (b) decide, by resolution, that redeployment of the employee, or appointment of the employee to another position, is not practicable. Salary maintenance 54.(1) This section applies if - (a) a continuing employee is redeployed, under this Division, to a position in the new local government (the "new position"); and (b) the salary for the new position is less than the salary to which the continuing employee was entitled for the permanent position the employee held in the merging local government (the "former position"). (2) The employee must be paid an allowance that is enough to maintain the employee's salary at the salary applying to the former position. (3) The allowance continues under subsection (2) until the end of 1 year after the employee's appointment to the new position, unless - (a) the person ceases to be an employee of the new local government; or (b) the person is appointed to a position in the new local government and the salary for the position is equal to, or more than, the salary for the former position. Payments to continuing employee who is retrenched or voluntarily retires 55.(1) This section applies to a continuing employee who is retrenched or voluntarily retires under this Division. (2) The employee is entitled to a payment equal to the employee's salary for 2 weeks for each year of service and a proportionate amount for an incomplete year of service. (3) However, the employee - (a) must receive an amount equal to the employee's salary for 4 weeks; but (b) must not receive an amount more than the employee's salary for 52 weeks. (4) If the employee accepts an offer to voluntarily retire within 2 weeks of the offer being made, the employee is also entitled to a further payment equal to the employee's salary for 13 weeks. (5) An entitlement to a payment under this section is in addition to any other entitlement to payment under this regulation or otherwise, but is instead of the severance entitlements mentioned in section 7 of Attachment O of the report. The precise meaning of section 55(5) of the Regulation is not clear, but nothing, for present purposes, seems to turn on it. The Hoffman Report The reference, in s 52(2) of the Regulation, to the "report" was to the "Hoffman Report", a report on "Procedures and Guidelines Used in Major Boundary Reviews" apparently published in November 1994 by a senior figure in local government, and commissioned by the State government. The terms of section 7 of Attachment O of the report are set out in Schedule 3 hereto. For present purposes, the important things to notice about the "process" (c.f. s 52(2) of the Regulation) envisaged by the Guidelines in the report are the following. · The main presently relevant objectives were to provide for the transfer of "employees" to appropriate positions in new councils on "terms and conditions no less favourable than" in their old councils and to "provide for payments in case of voluntary early retirement and retrenchment": Cl 3(1)(a) and (c). · "Employee" was very broadly defined to include even casuals and not, on any available view of the facts here, so as to exclude the applicants. "Redundancy" was conceived of as a "situation where, as a result of ... a decision [of a new council], an office or position [therein] is to be abolished". "Retrenchment" meant the compulsory or voluntary termination of an "employee['s]" service because the new council considered a) the employee's service unnecessary, or his or her position redundant, b) the "work for which the employee was engaged [to be] finished (except in the case of the expiration of a contracted period of service or the completion of a specified task)", or c) "the quantity of work has diminished and has rendered necessary a reduction in the number of employees" (emphasis added): see Cl 4 - "definitions". · There was to be a "best fit" method of transferring employees to positions in the new council whereby regard would be had to similarities of functions, responsibilities and remuneration with positions held by the employees in the former councils. · Merging local governments might not retrench any employee. In the new council, where an employee was appointed to a lower-paid position, redeployed upon his/her position being declared redundant, or neither so appointed or redeployed, the employee was to be offered voluntary early retirement, before retrenchment could occur: Cl 8. Upon either voluntary retirement or retrenchment, the employee was entitled to two weeks' pay for each year of service, with a minimum of four weeks and a maximum of a year's pay; if voluntary retirement was taken, an effective minimum of 13 weeks' employment or pay was provided for: Cl 13. · No external filling of positions should occur for 24 months unless there was no suitable internal applicant, and internal applicants would have the right of appeal to an independent arbitrator against, among other things, a decision by the council's management that there was no suitable applicant: Cl 12. · Minimum award standards of employees might be enhanced but not detracted from: Cl 1.2 and 1.3. Conclusions It seems with the benefit of hindsight that, in contrast with earlier episodes that could fairly be said to have involved the employer's executives in merely going through the motions, in May 1995 the respondent employer's chief executive may actually have wished to impose, if he legally could, short fixed-term contracts upon the applicants. However, for a number of reasons I think this possible desire was not effectuated. No agreement on the relevant term of the alleged contract of employment In the first place it is elementary that, for there to have been short fixed-term contracts, both parties must have agreed on a particular stipulation understood to have been a term of a contract. The letters to the applicants of May 19 were unilateral announcements to them of yet another "extension" of their employment. They were not asked to assent expressly to such stipulations as were expressed or implicit in the letters, nor in any case did the applicants do so. If they did not expressly agree that their employment should terminate on 28 July, the question is whether, by simply continuing to work, they impliedly did so. While, in such a case, the court may lean towards an affirmative answer to that question, nevertheless it is a question, it seems to me, to be answered by looking at all the circumstances: see the discussion in Carter & Harland, Contract Law in Australia, (3rd edn.), paras 205-6. The circumstances included the following: (a) By May 1995, the applicants had seen many letters similar to those of May 19 come and go, and be treated as mere interim arrangements, pending some final decision to be made at a never-arriving later time. (b) They had been given indications by their employer that their rights might be determined by a regulation, and/or by collective acts of the councillors. (c) Any effort to restrict their employment to a fixed term of two months must have appeared to them and their union to be sanctioned neither by the terms of the Regulation nor those of the Hoffman Report. (d) The length of their temporary engagement in each case had involved a breach of the Award, at least by the former council (the position of the new council is discussed more fully below). It must have appeared to them that there was some justification for a public body's being in such breach and their union's acquiescence in that continuing breach: that justification was that their wishes and prospects for ultimate, post-amalgamation permanent employment would be fairly determined in accordance with the Regulation and/or resolution of their employing council. (e) The contract between the parties did not require any fixed term, let alone one of a mere two months' duration, to give it business efficacy, c.f. Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, 346-7, per Mason J: there were other legal instruments which could provide means for termination of the employment, namely the Regulation and/or the Award, c.f. Byrne & Frew v Australian Airlines Ltd (1995) 131 ALR 422; (1995) 61 IR 32. (f) The applicants were not warned that merely continuing to work would be treated as acceptance of all that was proposed. In the light of these matters it would in my opinion be unsafe and wrong to infer, from the applicants' conduct in continuing to perform the work they had been doing, their agreement to everything in the letter each received. As indicated, there is no other basis for concluding they had so agreed. No "specified term" In the second place, even had any applicant agreed to what might be said to have been an offer constituted by the letters of 19 May, what was really offered bears examination. So far as the letters of 19 May evinced the employer's attitude to the applicants (and it is those letters that the respondent relies on as having done so), there is more than one way in which, in the context, the letters may be read. It is not their only possible meaning that they constituted an offer of employment for a specified period, commencing either as at the date of the letters, or as at the expiry of the employment "extensions" previously notified in each case. For example, they might be read as simply an offer to postpone until a later time the decision foreshadowed in the letters of 30 November as to the possible permanency of their temporary positions when the amalgamation process might be complete. Or they might be read as an offer of an extension, in the words of counsel for the applicants, of an "overarching contract", first made when continuous employment began and thereafter extended from time to time. There is no warrant for choosing an available meaning that benefits the respondent rather than the applicants, especially when the respondent's agents, and not the applicants, drafted the letters. In relation to the last comment, it is not that I think there is any occasion for importing into the relatively informal arrangements between the parties the rigours of the doctrine of interpreting a document against the party who has proffered it, but simply that there is no warrant to seek to interpret the letters against the applicants, who did not proffer them. To determine the precise content of the contracts of employment operative as at 20 May, it is proper to have regard to all the circumstances. See generally the very useful discussion of an analogous problem of award interpretation by Burchett J in Short v FW Hercus Pty Limited (1993) 40 FCR 511 at 517-520. As was aptly said of cases in which the contract is partly to be inferred from conduct, "The court is entitled to look at and should look at all the evidence from start to finish in order to see what the bargain was that was struck between the parties": J Evans & Son (Portsmouth) Ltd v Andrea Merzario Ltd [1976] 1 WLR 1078 at 1083 per Roskill CJ. Once that is done, it is not easy to state the effect of the contracts in terms that would deny the applicants relief. For example, had the apocryphal, officious bystander asked the parties, "Will the council be free as at 28 July to oust the applicants and replace them with other temporaries?", it seems very likely that both parties would have responded "Of course not!", and certain that at least the applicants would have done so. Without the applicants' assent, that could not have been the contract and, unless that was the contract, how can it be said that there was a contract for a period, or indeed that there was a termination of the employment on 28 July at other than the instance of the employer? Indeed, on a fair and practical interpretation, it could not be said, in my opinion, that Dr. Daines was making the applicants an offer which really required them, in all the circumstances, to hold themselves available to work for the respondent for the entire period to 28 July: the Council would surely have regarded them as free to leave on giving reasonable notice or, if the Award applied, notice "equivalent to the pay period": Cl 45. The language of the letters is not that of proposing an obligation for acceptance by the applicants but of unilaterally bestowing a benefit upon them. In truth, had any of them wished to leave, one has the impression that the new senior management would simply have regarded that as one less problem with which to deal. Hence there was no mutuality of obligation as to the period mentioned in the letter. Where there is no mutuality of contractual obligation as to a specified term, in my opinion there is no "contract of employment for a specified term" within the meaning of Reg 30B of the Industrial Relations Regulations. The terms of that regulation are drawn from and reflect the policy and purposes evident in the following provisions of Article 2 of the Termination of Employment Convention: 1. This Convention applies to all branches of economic activity and to all employed persons. 2. A Member may exclude the following categories of employed persons for all or some of the provisions of this Convention: (a) workers engaged under a contract of employment for a specified period of time or a specified task; ... 3. Adequate safeguards shall be provided against recourse to contracts of employment for a specified period of time the aim of which is to avoid the protection resulting from this Convention. In my view, the collocation in para 2 of "specified period of time" and "specified task" tends to reinforce the requirement of mutuality of obligation: it could hardly be said that there was a contract of employment for a specified task if the employee was not bound to remain in the employment until the task was completed; equally, it seems to me, there is no contract for a specified period unless the employee is bound to remain in the employment until the period is completed. Paragraph 3 needs also to be borne in mind as an aid to the interpretation of para 2. Further questions may arise which need not be determined here. In the sense of the Convention really that protection of the employee is not required where there has been free agreement that the employment shall not continue beyond a specified period? If so, care must be taken not to confuse an arrangement "to employ somebody up until a particular date with [one] that they not be employed after that date": Ioannou v Fowell [1984] 156 CLR 328 at 334. A contract determinable before the expiry of some period is simply a contract of indefinite duration: see the decision of von Doussa J in Anderson v Umbakumba Community Council (1994) 56 IR 102 at 106. Effects of the novelty of the legal personality of the new Gold Coast Council The respondent originally submitted that the Award applied so as to "cover the field" of redundancy and to oust the Regulation: s 109 of the Constitution and s 152 of the Industrial Relations Act (1988) (Cth). See also Metal Trades Industry Association of Australia v Australian Metal Workers Union (1983) 152 CLR 632 ("MTIA"). However, on second thoughts, and following suggestions from me in the course of argument that the Award might impliedly require that employees engaged temporarily for a period in excess of that contemplated by Cl 28 be accorded all the rights of permanent employees, this submission was abandoned in favour of a "new personality" point (a consequence of which would be that the Award does not apply). The new personality point is this: ss 5, 9, 19, 26 and 50 of the Regulation make it clear that the present Gold Coast City Council, while it is the successor to the old one and assumes its liabilities, is nevertheless a new and different entity from the old one. As such, after changeover day, it entered into contracts with the applicant which were quite new and distinct from those entered into by the old Gold Coast Council. Thus the contracts allegedly entered into by the applicants' acceptance of the letters of 19 May were caught by Reg 30B(1)(aa) of the Industrial Relations Regulations and/or could not amount to the continuation of earlier contracts made with the old council. Council referred to Re Australian Industrial Relations Commission; Ex parte Australian Transport Officers Federation (1990) 171 CLR 216. I agree that there is a logical distinction between a statutory continuation of the legal personality of some public entity and the enactment that a new public entity should be the successor of an abolished one. But here it seems to be a distinction without a relevant difference. Sections 5, 9, 19 and 26 of the Regulation (those dealing with the abolition of the old councils and the creation of their new "successor" council must be read with s 50 (which provides for the maintenance of employees rights after changeover). There is no reason for thinking that the separate treatment of employees' rights under 50 was intended in any way to attenuate of limit the scope of ss 19 and 26. On the contrary, there seems to have been an abundance of caution exercised to ensure that all liabilities of the old council to its employees, including equitable and inchoate liabilities, would continue as against the new council. Accordingly, the applicants are entitled to the protections of the Act. Effect of the Award Despite the abandonment by the respondent of the submission that the Award is applicable and would operate to oust the Regulation, it is convenient and proper that I state my conclusions about the interpretation and application of the Award. There is, in my opinion, no reason based on the new personality point why the Award does not apply. Section 19 of the Regulation in general terms makes the new council the "successor" of the old. As such, the new council would fall within s 149(1)(d) of the Act, which deals with person who are bound by awards. Section 149(1) provides as follows: "149(1) ... an award... is binding on: ... (d) any successor ... to ... the business of an employer who was a party to the ... industrial dispute ..." Accordingly, by force of that latter section, the respondent is bound by the Award. However, upon reflection, I think that the Award cannot be read so as to require that a temporary employee employed for longer than is allowed under Cl 28 should be treated as a permanent employee. There may be other reasons for so concluding, but to my mind the terms of Cl 26 are decisive. That clause, providing in subcl (d) for restrictions on outside-council advertisement of vacant positions, but in subcl (e) requiring general inside-council advertising of vacant permanent positions, would simply be subverted by such a reading. In relation to such important matters, it could not be assumed by a court that that was what the framer(s) of the Award intended. On the other hand, the Award either does not operate to the exclusion of the Regulation or, at least, does not prevent the court relying on the terms of the Regulation to consider the merits of the matter. Considering inconsistency first, the critical question is: What is the conduct or matter with which the Award deals? (See MTIA at 649). The Award relevantly deals with minimum standards, for employees and employers, of notice of termination: Cl 45, but that clause is expressly subject to "the Local Government Act" under which the Regulation was made. It deals also with aspects of redundancy. But it does so in a way which does not create rights for employers but only broad minimum standards for employees. In MTIA, the High Court, in a slightly different context, applied the following approach: "... the award fails to deal with the matter provided for by [a State statute], unless the award exhibits an intention that there is to be no benefit of that kind or, alternatively, that the benefits for which it provides are to be a complete and exclusive statement of the employee's entitlement in the relevant area." (at 651) The Award in this case exhibits neither of these intentions. And the Award does not at all deal (except in relation to an employer's "definite decision that the employer no longer wishes the job the employee has been doing [to be] done by anyone..."), with processes for the reorganisation of staff, including before any such final decision, following upon an amalgamation of councils mandated by statutory authority. Even if the terms of the Award were inconsistent with the Regulation, the Regulation would not here be invalidated. That is because of the effect of ss 170ha and 170hb of the Act, which are in the following terms: "170ha On and after 26 February 1994, when the Termination of Employment Convention takes effect, any award or order of the Commission that is inconsistent with the requirements of that Convention does not have effect to the extent of the inconsistency. 170hb This Division is not intended to limit any right that a person or trade union may otherwise have to appeal against termination of employment or to secure the making of awards or orders relating to the termination of employment." The most relevant provisions of the Convention are: Article 3 For the purposes of this Convention the terms "termination" and "termination of employment" mean termination of employment at the initiative of the employer. Article 4 The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service. Article 8 1. A worker who considers that his employment has been unjustifiably terminated shall be entitled to appeal against that termination to an impartial body, such as a court, labour tribunal, arbitration committee or arbitrator. ... Article 9 1. The bodies referred to in Article 8 of this Convention shall be empowered to examine the reasons given for the termination and the other circumstances relating to the case and to render a decision on whether the termination was justified. ... Article 10 If the bodies referred to in Article 8 of this Convention find that termination is unjustified and if they are not empowered or do not find it practicable, in accordance with national law and practice, to declare the termination invalid and/or order or propose reinstatement of the worker, they shall be empowered to order payment of adequate compensation or such other relief as may be deemed appropriate. (emphasis added) As a practical matter here, if the Regulation applies (but for any inconsistency with the Award), then it would clearly be "unjustified" that terminations should occur on terms less favourable than if the processes contemplated by the Regulation had been followed. The Regulation was framed having in mind the circumstances of the merging councils and their staffs as well as the interest of the respondent in efficient operation: It substantially drew upon the expert advice of Mr. Hoffman. No doubt relevant unions, as well as officers of the State Government, council executives and councillors elected to represent ratepayers and residents, had their say in negotiations and submissions preceding the issue of the Regulation. The Regulation impresses as fair and reasonable. Indeed, if it had been followed, it would seem difficult to imagine how this court might have discerned any injustice to any party. To the extent, therefore, that the Award might inhibit the operation of the Regulation, it appears that the Award would be inconsistent with "the requirements of [the] Convention" that terminations be justified. In any case, to the extent to which the court is attracted to the substance of the Regulation's provisions, and is minded to make an order founded thereon, s 170jg ensures that the Award will provide no obstacle to the court's so doing. Section 170jg provides: 170jg Any award or order of the Commission that is inconsistent with an order under this Part does not have effect to the extent of the inconsistency. Termination at initiative of employer In the letters of 19 July, Dr. Daines wrote: "A decision has been taken not to continue your employment beyond the date advised in [the respondent's letter of 19 May 1995]. As there are no alternative employment opportunities to which you can be redeployed, Council herein confirms that your services will be terminated on Friday, 28 July 1995." (emphasis supplied) To my mind this is a plain admission, in effect, that the decision not to continue the employment of the applicants was that of the employer. The alternative explanation, I suppose, is that mere courtesy dictated that the bad news - that there could be no going beyond an agreed date - be gently conveyed. This, however, lacks reality and is not consonant with the language employed: mere courtesy did not require that anything be said about a "decision [having] been taken". Further, the language of the assertion that "there are no alternative employment opportunities to which [they could] be redeployed" is redolent of s 53 of the Regulation, which it may be recalled was in the following terms: 53. Before retrenching a continuing employee, the new local government must - (a) try to redeploy or appoint the employee to a suitable position; or (b) decide, by resolution, that redeployment of the employee, or appointment of the employee to another position, is not practicable. The inference is that the respondent's chief executive believed that he was "retrenching" the applicants, i.e. terminating their services at the initiative of the employer. This inference is strengthened by an analysis of what the applicants were paid on the termination of their services. They were paid not less than what they would have been entitled to had they been retrenched under s 53, and there is no warrant for thinking that the considerable sum each was paid was applied from ratepayers' funds simply because of a well of compassion in somebody's heart. The inference is further strengthened by the failure of Dr. Daines, or anyone else apparently intimately involved in the decision not to continue the applicants' employment, to give evidence to the contrary. In summary, these terminations of employment were made at the initiative of the employer. A valid reason for such terminations? It need not be doubted that the management of the new council hoped to economise by more efficiently utilising the services of the staff transferred from the two former councils. It would be strange if it were otherwise. Further, there seems to have been some actual or imminent downturn in the local building industry and therefore in the volume of work for council building inspectors. But a "valid reason ... based on the operational requirements of the undertaking" for reducing the numbers of staff in a certain category does not by itself necessarily constitute such a reason for terminating the employment of particular employees within that category. The onus is on the respondent employer to Australian Submarine Corporation Pty Ltd (Full Court of the Industrial Relations Court of Australia, 26 March 1996, unreported). This the respondent has quite failed to do. All that the Court knows is that the applicants were called "temporary employees". The omission is the more glaring since the Regulation envisaged equal treatment as between permanent officers and long-term (employed over one year) temporary employees. A valid reason for the termination of the applicant's employment has not been shown. Harsh and unjust terminations In any case, the terminations were in my opinion both harsh and unjust within the meaning of s 170de(2). I do not overlook that the applicants were paid on the termination of their services, as noted above, not less than what they would have been entitled to had they been retrenched under s 53 of the Regulation, and that by the standards of the private sector labour market, overall such payments were neither small nor mean. But this was a particular case. It was not employment in the private sector, and the applicants were denied the other very obvious benefits and protections of that Regulation. To put it no higher, they had also been encouraged, by those for whom the respondent is responsible, reasonably to hope for much more empathetic treatment than they received. Their employment was terminated at a time when alternative work was likely to be harder to come by because of the building industry downturn. Estoppel As an alternative to his principal submissions, most of which, in one form or another, I have upheld, counsel for the applicant argued that the respondent is estopped from unconscientiously asserting its legal rights; see in particular Commonwealth v Verwayen (1990) 170 CLR 394 at 443-446, per Deane J. There are some problems about the application of this doctrine even assuming (which is not especially clear on the facts here) that the preconditions to its application one satisfied. Those preconditions include that the beneficiary of the doctrine should have "adopted the assumption as the basis of action or inaction and thereby placed himself (sic) in a position of significant disadvantage if departure from the assumption be permitted, ... [which involves] an examination of the relevant belief, actions and position of that party" ibid at 444. The relevant assumption, here, would be that the employment would continue until such time as terminated in accordance with the Hoffman Report to the extent that that was adopted by the Regulation. I have in mind the stress laid on all hands, in Verwayen, on the necessity for limiting the relief to "what could be justified by the requirements of good conscience" (per Deane J at 445-446), or, as Mason CJ put it (at 413), to "proportionality between the remedy and the detriment which [it is the doctrine's] purpose to avoid". It seems to me a difficult question whether "the requirements" of good conscience in the legal sense, or proportionality to the detriment suffered, would necessarily require more than the conventionally adequate payments of something in the nature of "redundancy pay" which were in fact made by the respondent to the applicants. The difficulty is in deciding what was the relevant extent of the detriment: there is no evidence to suggest that, had the applicants not been encouraged to make the said assumption, any of them would by the time of trial have had equivalent work elsewhere. If, instead of what did happen, the old and/or new Council had simply given the applicants lawful notice of termination of their employments, or made it abundantly clear at all times that that was all they could expect, it has not been shown, to my mind, that they would have been better off than as a result of the said payments. Reinstatement practicable The respondent argues that there is no work in their own classifications for the applicants, that there have been changes in the organisational arrangements for performance of building inspections and that their qualifications are such that they could not usefully be employed in other positions on the Council's staff. However this may be (and a grain of salt is useful, since the Council has over 2,300 employees), the short answer to it is that the Council will be in no worse position, apart from further cost associated with delay in receiving this judgment, than had it obeyed a Regulation made by competent Queensland authority and intended to have specific application to a case such as this. Further, the evidentiary fact that such a regulation was made, providing for maintenance of employees in their employment, except in carefully defined circumstances, and against a background of the Hoffman report's having contemplated possible "retrenchment" because the new council might ultimately consider an employee's service unnecessary, or their position redundant (see Cl 4 - "definitions") tells powerfully against a conclusion that reinstatement is impracticable. Is relief "appropriate in all the circumstances of the case"? In deference to the consideration that it may only be when the direction of my thinking on other issues is known that the respondent could address this issue, I will arrange to hear the parties further on this and on the form of any final orders for relief I might ultimately be disposed to make. SCHEDULE 1 - Letters of appointment and "extensions" They were advised as follows, in writing, about their employment: Mr Church Letter of 16 May 1994 "Position - Temporary Building Surveyor I have pleasure in advising that approval has been given to employ you temporarily in the above position. Your appointment is subject to the following conditions: 1. Your classification under the Queensland Local Government Officers' Award will be Local Government Officer (Community & Environmental Services Stream), Level 4, Increment 1 ($32,091 per annum). 2. Your commencement date for this position will be Monday, 16 May 1994. Your period of employment will be for approximately six (6) months. 3. It should be noted that it is Council policy to pay all temporary staff one (1) week in arrears. 4. It is Council policy that it is not compulsory to obtain membership of a union. 5. It is Council policy that smoking is not permitted within work areas at the Gold Coast City Council and in Council vehicles. I take this opportunity to wish you every success in your new position." Letter of 30 November 1994 "Temporary Employment Due to the probability of an amalgamation between the Gold Coast City Council and Albert Shire Council it has been necessary to appoint a number of employees, of which you are one, on a temporary basis. This arrangement will apply until the amalgamation process is finalised. After this the temporary position that you occupy may be made permanent dependent upon the new Council's needs at that time. I have pleasure in advising that approval has been given to extend your period of temporary employment within the Development & Environment Planning Directorate, until 31 May 1995 at which time the position will be assessed. When applying for Council job vacancies it is important to note the following; positions vacant can be filled on a permanent basis by permanent employees only, all other appointments can only be of temporary status. Conditions of application will be clearly outlined on each job vacancy advertisement. Your conditions of employment, as outlined in previous correspondence still apply. Thank you for your contribution to the execution of the functions of the Council. Your commitment by way of your time and energy to your job are appreciated and will reinforce your application if an opportunity to make your status with Council permanent presents itself." Letter of 19 May 1995 "Extension of Temporary Employment - Building Surveyor Further to Council's previous correspondence dated 30 November 1994, I have pleasure in advising that approval has been given to extend your period of temporary employment within the Development & Environment Planning Department. Your period of employment will be extended until Friday 28 July 1995. Conditions of employment as outlined in previous correspondence still apply." Letter of 19 July 1995 "Position of Temporary Building Surveyor - Department of Development and Environment Planning I refer to Council's letter of 19 May 1995, regarding the duration of your temporary employment. A decision has been taken not to continue your employment beyond the date advised in the above correspondence. As there are no alternative employment opportunities to which you can be redeployed, Council herein confirms that your services will be terminated on Friday, 28 July 1995. In accordance with relevant Award and/or Statutory Regulations all monies due will be paid into your nominated financial institution. I would like to take this opportunity to thank you for the work you have done and wish you all the best in the future." Mr Dussek Letter of 23 June 1992 "Position - Temporary Building Surveyor I am pleased to advise your temporary employment with Council has been extended to the 30 September, 1993. Your classification under the Queensland Local Government Officers' Award will be Local Government Officer (Community & Environment Services Stream) Level 4, Increment 1. Previous conditions of employment apply." Letter of 21 January 1993 "Position: Temporary Building Surveyor I am pleased to advise that your application for the above position has been successful. Your appointment is subject to the following conditions: 1. Your classification under the Queensland Local Government Officers' Award will Temporary Local Government Officer (Community & Environmental Services), Level 4, Increment 1. 2. Your period of employment will commence 1 February 1993 through to 30 April 1993. 3. It is Council policy that it is not compulsory to obtain membership of a union. 5. It is Council policy that smoking is not permitted within work areas at the Council and Council vehicles. I take this opportunity to wish you every success in your new career with Gold Coast City Council." Letter of 21 October 1993 "Position: Temporary Liaison Officer I have pleasure in advising you have been appointed to the above position under the following conditions: 1. Your classification under the Queensland Local Government Officers' Award will be Local Government Officer (Administrative Services Stream), Level 2, Increment 1 ($24,856 per annum). 2. Your appointment in this position shall be from 25 October 1993. 3. Your appointment is on a temporary basis pending return of the permanent officer to the position." Letter of 20 June 1994 "Position: Temporary Administrative Officer - Liaison Section Further to Council's previous correspondence dated 21 October 1994, I have pleasure in advising that approval has been given to extend your period of employment within the Liaison Section. Your period of employment will be extended for a period of three (3) months until Friday, 23 September 1994. Previous conditions of employment still apply." Letter of 8 September 1994 "Position: Temporary Administrative Officer Further to Council's previous correspondence dated 20 June 1994, I have pleasure in advising that approval has been given to extend your period of temporary employment within the Development Applications Team 1 of the Development & Environment Planning. Your period of employment will be extended until Wednesday, 30 November 1994. Conditions of employment, as outlined in previous correspondence, still apply." Letter of 30 November 1994 "Temporary Employment Due to the probability of an amalgamation between the Gold Coast City Council and Albert Shire Council it has been necessary to appoint a number of employees, of which you are one, on a temporary basis. This arrangement will apply until the amalgamation process is finalised. After this the temporary position that you occupy may be made permanent dependent upon the new Council's needs at that time. I have pleasure in advising that approval has been given to extend your period of temporary employment within the Development & Environment Planning Directorate, until 31 May 1995 at which time the position will be assessed. When applying for Council job vacancies it is important to note the following; positions vacant can be filled on a permanent basis by permanent employees only, all other appointments can only be of temporary status. Conditions of application will be clearly outlined on each job vacancy advertisement. Your conditions of employment, as outlined in previous correspondence still apply. Thank you for your contribution to the execution of the functions of the Council. Your commitment by way of your time and energy to your job are appreciated and will reinforce your application if an opportunity to make your status with Council permanent presents itself." Letter of 19 May 1995 "Extension of Temporary Employment - Administrative Officer Further to Council's previous correspondence dated 30 November 1994, I have pleasure in advising that approval has been given to extend your period of temporary employment within the Development & Environment Planning Department. Your period of employment will be extended until Friday, 28 July 1995. Conditions of employment as outlined in previous correspondence still apply." Letter of 19 July 1995 "Position of Temporary Administrative Officer - Department of Development and Environment Planning I refer to Council's letter of 19 May 1995, regarding the duration of your temporary employment. A decision has been taken not to continue your employment beyond the date advised in the above correspondence. As there are no alternative employment opportunities to which you can be redeployed, Council herein confirms that your services will be terminated on Friday, 28 July 1995. In accordance with relevant Award and/or Statutory Regulations all monies due will be paid into your nominated financial institution. I would like to take this opportunity to thank you for the work you have done and wish you all the best in the future." Mr Lack Letter of 26 April 1994 "Position: Temporary Building Surveyor I am pleased to advise that your application for the above position has been successful. Your appointment is subject to the following conditions: 1. Your classification under the Queensland Local Government Officers' Award will be Local Government Officer (Community & Environmental Services Stream), Level 4, Increment 3 ($33,683 per annum). 2. This is a temporary position commencing Monday, 9 May 1994 for the duration of approximately twelve (12) months. 3. It is Council policy that it is not compulsory to obtain membership of a union. 5. It is Council policy that smoking is not permitted within work areas of the Council and Council vehicles. On your first day at work you will be required to attend an induction course, details attached for your perusal. I wish you every success in your new position with Council." Memo of 24 February 1995 "D Lack Further to our discussions this morning, I would like to undertake a trial deployment of Darren Lack into Beaches Waterways and City Cleaning. This would enable him to develop an expertise in the specialist areas of foreshore structures, flood setbacks and buildings within the Erosion Prone Areas. If possible an early start to this arrangement would be appreciated." Memo of 2 March 1995 "Temporary Deployment - Building Surveyor Darren Lack I advise that Darren Lack has been advised to report for duty in your Directorate as from Monday 6 March 1995. It is understood that the proposed training is to equip him with the expertise to process applications for Marine Structures and to acquire specialist knowledge of flood setbacks and buildings within the erosion prone areas. It is further understood that this training period is to extent for 3 months and upon satisfactory completion of his training he is to be re-deployed back to D & EP Team 1. It would be appreciated if you would formally confirm this arrangement." Letter of 5 May 1995 "Extension of Temporary Employment - Building Surveyor Further to Council's previous correspondence dated 26 April 1995[4], I have pleasure in advising that approval has been given to extend your period of temporary employment within the Development & Environment Planning Department (Surfer Paradise Office). Your period of employment will be extended until Friday, 28 July 1995, at which time the position will be reassessed. Conditions of employment as outlined in previous correspondence still apply." Letter of 19 July 1995 "Position of Temporary Building Surveyor - Department of Development and Environment Planning I refer to Council's letter of 5 May 1995, regarding the duration of your temporary employment. A decision has been taken not to continue your employment beyond the date advised in the above correspondence. As there are no alternative employment opportunities to which you can be redeployed, Council herein confirms that your services will be terminated on Friday, 28 July 1995. In accordance with relevant Award and/or Statutory Regulations all monies due will be paid into your nominated financial institution. I would like to take this opportunity to thank you for the work you have done and wish you all the best in the future." Mr Lovell Letter of 9 May 1994 "Position: Temporary Inspector - Plumbing I have pleasure in advising that your application for the above position has been successful. Your appointment is subject to the following conditions: 1. Your classification under the Queensland Local Government Officers' Award will be Local Government Officer (Community & Environmental Services Stream), Level 4, Increment 1 ($32,091 per annum). 2. Your period of employment for this position will be for a duration of three (3) months, commencing on Monday, 9 May 1994. 3. It should be noted that it is Council policy to pay all temporary staff one (1) week in arrears. 4. It is Council policy that it is not compulsory to obtain membership of a union. 5. It is Council policy that smoking is not permitted within work areas at the Gold Coast City Council, and in Council vehicles. I take this opportunity to wish you every success in your new position." Letter of 16 August 1994 "Position: Temporary Inspector - Plumbing Further to Council's previous correspondence dated 9 May 1994, I have pleasure in advising that approval has been given to extend your period of temporary employment within the Building Section of the Development & Environment Planning Department. Your period of employment will be extended for a period of six (6) months, until Friday, 10 February 1995. Conditions of employment, as outlined in previous correspondence, still apply." Letter of 1 February 1995 "Extension of Temporary Employment - Plumbing Inspector Further to Council's previous correspondence dated 16 August 1994, I have pleasure in advising that approval has been given to extend your period of temporary employment within the Development & Environment Planning Directorate. Your period of employment will be extended until Wednesday, 31 May 1995. Conditions of employment as outlined in previous correspondence still apply." Letter of 19 May 1995 "Extension of Temporary Employment - Plumbing Inspector Further to Council's previous correspondence dated 1 February 1995, I have pleasure in advising that approval has been given to extend your period of temporary employment within the Development & Environment Planning Department. Your period of employment will be extended until Friday 28 July 1995. Conditions of employment as outlined in previous correspondence still apply." Letter of 19 July 1995 "Position of Temporary Plumbing Inspector - Department of Development and Environment Planning I refer to Council's letter of 19 May 1995, regarding the duration of your temporary employment. A decision has been taken not to continue your employment beyond the date advised in the above correspondence. As there are no alternative employment opportunities to which you can be redeployed, Council herein confirms that your services will be terminated on Friday, 28 July 1995. In accordance with relevant Award and/or Statutory Regulations all monies due will be paid into your nominated financial institution. I would like to take this opportunity to thank you for the work you have done and wish you all the best in the future. Mr Rix Letter of 23 May 1994 "Position: Temporary Building Surveyor I have pleasure in advising that approval has been given to employ you temporarily in the above position. Your appointment is subject to the following conditions: 1. Your classification under the Queensland Local Government Officers' Award will be Local Government Officer (Community & Environmental Services Stream), Level 4, Increment 1 ($32,091 per annum). 2. Your commencement date for this position will be Monday, 23 May 1994. Your period of employment will be for approximately six (6) months duration. 3. It should be noted that it is Council policy to pay all temporary staff one (1) week in arrears. 4. It is Council policy that it is not compulsory to obtain membership of a union. 5. It is Council policy that smoking is not permitted within work areas at the Gold Coast City Council and in Council vehicles. I take this opportunity to wish you every success in your new position." Letter of 30 November 1994 "Temporary Employment Due to the probability of an amalgamation between the Gold Coast City Council and Albert Shire Council it has been necessary to appoint a number of employees, of which you are one, on a temporary basis. This arrangement will apply until the amalgamation process is finalised. After this the temporary position that you occupy may be made permanent dependent upon the new Council's needs at that time. I have pleasure in advising that approval has been given to extend your period of temporary employment within the Development & Environment Planning Directorate, until 31 May 1995 at which time the position will be assessed. When applying for Council job vacancies it is important to note the following; positions vacant can be filled on a permanent basis by permanent employees only, all other appointments can only be of temporary status. Conditions of application will be clearly outlined on each job vacancy advertisement. Your conditions of employment, as outlined in previous correspondence still apply. Thank you for your contribution to the execution of the functions of the Council. Your commitment by way of your time and energy to your job are appreciated and will reinforce your application if an opportunity to make your status with Council permanent presents itself." Letter of 19 May 1995 "Extension of Temporary Employment - Building Surveyor Further to Council's previous correspondence dated 30 November 1994, I have pleasure in advising that approval has been given to extend your period of temporary employment within the Development & Environment Planning Department. Your period of employment will be extended until Friday, 28 July 1995. Conditions of employment as outlined in previous correspondence still apply." Letter of 19 July 1995 "Position of Temporary Building Surveyor - Department of Development and Environment Planning I refer to Council's letter of 19 May 1995, regarding the duration of your temporary employment. A decision has been taken not to continue your employment beyond the date advised in the above correspondence. As there are no alternative employment opportunities to which you can be redeployed, Council herein confirms that your services will be terminated on Friday, 28 July 1995. In accordance with relevant Award and/or Statutory Regulations all monies due will be paid into your nominated financial institution. I would like to take this opportunity to thank you for the work you have done and wish you all the best in the future." Mr. Smith Letter of 9 August 1993 "Position: Temporary Building Surveyor ... your application for the above position has been successful. Your appointment is subject to the following conditions:- ... 2. Your commencement date in this position will be ... 16 August 1993. 3. This is a temporary appointment for a period of six (6) months only. ... I ... wish you every success in your new career with [the] Council." Letter of 21 February 1994 "Extension of employment ... approval has been given to extend your period of employment ... until 27 May 1994 inclusive. Previous conditions of employment still apply." Letter of 16 May 1994 "Extension of employment - Temporary Building Inspector" ... Your period of employment will be extended to ... 25 November 1994. Previous conditions of employment remain the same." Letter of 19 May 1995 ""Extension of temporary employment - Building Surveyor" Further to Council's previous correspondence dated 30 November 1994, I have pleasure in advising that approval has been given to extend your period of temporary employment within the Development & Environment Planning Department. Your period of employment will be extended until Friday, 28 July 1995. Conditions of employment as outlined in previous correspondence still apply." Memo of 9 June 1995 "Transfer to Nerang Office John, this memo is to confirm the verbal advice to you of today's date regarding your transfer to the Nerang Office. As next Monday 12 June 1995, is a public holiday, you will have your RDO on Tuesday 13 June 1995 in lieu and report to Dave Roberts, Building Services Branch Manager on the morning of Wednesday 14 June 1995. Dave Roberts has been advised of the approval given to you to attend TAFE on Thursday afternoons at 2.30pm from 27/07/95 to 23/11/95 inclusive and has no problem with the arrangement. You will continue to be paid from this office, however your RDO may need to be adjusted according to the Nerang Office's Schedule. You will be advised if this is so. John, this transfer could be viewed as an opportunity for you to consolidate your position within the organisation and I urge you to give it your best shot. Thank you for your contribution to the success of Team 1 and I wish you all the very best in your future career." Letter of 19 July 1995 "Position of Temporary Building Surveyor - Department of Development and Environment Planning I refer to Council's letter of 19 May 1995, regarding the duration of your temporary employment. A decision has been taken not to continue your employment beyond the date advised in the above correspondence. As there are no alternative employment opportunities to which you can be redeployed, Council herein confirms that your services will be terminated on Friday, 28 July 1995. In accordance with relevant Award and/or Statutory Regulations all monies due will be paid into your nominated financial institution. I would like to take this opportunity to thank you for the work you have done and wish you all the best in the future." SCHEDULE 2 - Award Provisions Clause 29 limits part time employment so that a part-time officer might without prior agreement between the relevant Union and Council, work part-time so as to aggregate not more than three months in a twelve month period. There are other restrictions on such employment including a penalty rate of payment for work done. Casual employment is limited under Clause 30 of the Award, in ways that are fairly common across many industries. Part VII deals with "Termination and Redundancy". Clause 45 "Termination of Employment" provides relevantly: "(a) An officer desirous of terminating employment shall, or a respondent desiring to terminate the services of an officer shall, subject to the provisions of the Local Government Act, give notice of such intention equivalent to the pay period of the officer. In default of such notice, an officer shall forfeit pay for that period and a respondent shall pay such salary in lieu of notice." ... Clause 46A is a fairly standard "Notification of Change" clause, the essence of which is that, when an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees (which phrase includes termination of employment and major changes in the composition or size of the workforce), the employer shall notify the employees who might be affected and their Union. Clause 46B deals with "Redundancy" and requires the employer, before terminating, to hold discussions with the employees and with their Unions in circumstances where an employer "has made a definite decision that the employer no longer wishes the job the employee has been doing [to be] done by anyone and this is not due to the ordinary and customary turnover of labour and that decision may lead to termination of employment". The same clause deals with the subject "Transmission of Business" in these terms: (c) (i) Where a business is before or after the date of this award, transmitted from an employer (in this subclause called "the transmittor") to another employer (in this subclause called "the transmittee") and an employee who at the time of such transmission was an employee of the transmittor in that business becomes an employee of the transmittee: (1) the continuity of the employment of the employee shall be deemed not to have been broken by reason of such transmission; and (2) the period of employment which the employee has had with the transmittor or any prior transmittor shall be deemed to be service of the employee with the transmittee. (ii) In this subclause "business" includes trade, process, business or occupation and includes part of any such business and "transmission" includes transfer, conveyance, assignment or succession whether by agreement or by operation of law and "transmitted" has a corresponding meaning. The clause goes on to require a day's time off for each week of notice during the notice period so that the employee may seek other employment. SCHEDULE 3 - Relevant Articles of the Termination of Employment Convention Article 2 1. This Convention applies to all branches of economic activity and to all employed persons. 2. A Member may exclude the following categories of employed persons for all or some of the provisions of this Contravention: (a) workers engaged under a contract of employment for a specified period of time or a specified task; (b) workers serving a period of probation or a qualifying period of employment, determined in advance and of reasonable duration; (c) workers engaged on a casual basis for a short period. 3. Adequate safeguards shall be provided against recourse to contracts of employment for a specified period of time the aim of which is to avoid the protection resulting from this Convention. ... Article 3 For the purposes of this Convention the terms "termination" and "termination of employment" mean termination of employment at the initiative of the employer. Article 4 The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service. Article 8.1 A worker who considers that his employment has been unjustifiably terminated shall be entitled to appeal against that termination to an impartial body, such as a court, labour tribunal, arbitration committee or arbitrator. Article 9 1. The bodies referred to in Article 8 of this Convention shall be empowered to examine the reasons given for the termination and the other circumstances relating to the case and to render a decision on whether the termination was justified. 2. Where termination has been authorised by a competent authority the application of paragraph 1 of this Article may be varied according to national law and practice. 3. A worker may be deemed to have waived his right to appeal against the termination of his employment if he has not exercised that right within a reasonable period of time after termination. Article 10 If the bodies referred to in Article 8 of this Convention find that termination is unjustified and if they are not empowered or do not find it practicable, in accordance with national law and practice, to declare the termination invalid and/or order or propose reinstatement of the worker, they shall be empowered to order payment of adequate compensation or such other relief as may be deemed appropriate. SCHEDULE 4 - Hoffman Report Provisions PROCEDURES AND GUIDELINES USED IN MAJOR BOUNDARY REVIEWS "7. RATIONALISATION OF STAFF 7.1 Clause 1 - Application (1) These guidelines and parameters will have application only to local governments involved in and/or created as a result of reviews being conducted by the Commissioner following receipt of a reference by the Minister for Housing, Local Government and Planning in accordance with section 67 of the Local Government Act 1993. They relate to the organisation, re-organisation and rationalisation of staff arising out of any such reviews. (2) Any enforceable minimum standard contained within appropriate legislation, awards, industrial agreements and enterprise agreements shall apply in relation to matters not covered by these guidelines and parameters. (3) Where these guidelines and parameters provide a benefit or condition in excess of the award, the terms and conditions of these guidelines and parameters shall prevail. (4) These guidelines and parameters shall be regarded as minimum standards and mutually agreed arrangements may be made in relation to the matters covered herein in excess of these standards. (5) These guidelines and parameters shall not apply to employees of involved local governments engaged on a temporary basis for capital works, research projects or other related work programs. However, they do apply as and where appropriate on a pro-rata basis to part-time and casual employees engaged in the ongoing services and functions of a local government. 7.2 Clause 2 - Period of Operation (1) These guidelines and parameters constitute broad principles to apply to reviews undertaken by the Commissioner. However, they may be amended by the Commissioner following consultation with relevant union and employer representatives. (2) These guidelines and parameters shall be implemented on a case by case basis, subject to specific amendments appropriate in the circumstances, by regulation in accordance with section 106 of the Local Government Act 1993. 7.3 Clause 3 - Objectives (1) (a) To provide that any person who is transferred from a former local government to a successor local government becomes an employee of the successor local government holding an office or employment which has regard for the employee's skill level and previous responsibility in the former local government and which is on terms and conditions no less favourable than the terms and conditions of their former office or employment. (b) To provide terms and conditions of employment in respect of transferred employees. (c) To provide for payments in the case of voluntary early retirement and retrenchment. (d) To provide for consultation between the parties involved and for a method of settling disputes if agreement cannot be reached between the parties. (2) In meeting the objects of these guidelines and parameters, the terms and conditions of employment of an employee provided by a former local government may be offset by the terms and conditions of employment provided by a successor local government if overall those terms and conditions are no less favourable than those that previously applied. (3) A transferred employee shall be transferred to a successor local government with the benefit of all rights accrued in respect of their employment with the former local government as if the previous service had been with the successor local government. (4) Notwithstanding the provisions of subclauses (2) and (3) of this clause, every transferred employee shall be employed in accordance with existing awards, industrial agreements, including enterprise agreements, and legislation. (5) The determination of the organisational structure and staffing establishment of the successor local government shall be the responsibility of the successor local government council. (6) In determining the new organisational structure and staffing establishment, due regard shall be given to the examination and analysis forming the basis for the recommendation of the merger or change of external boundaries. 7.4 Clause 4 - Definitions In these guidelines and parameters, unless the context otherwise requires:- Employee - Any person who is employed by the successor local government whether on a full-time, part-time, or casual basis, but does not include any person engaged by the local government only for the purpose of undertaking or supervising a specific capital works project or research project or work of a related kind or a person who has abandoned employment with a local government. Former Local Government - A local government whose area is abolished or reduced as a consequence of a regulation. Independent Arbitrator - A person appointed by a selection panel comprising representatives of the parties subject to the guidelines and parameters. Internally Advertised - Advertised within the successor local government by the placement of notices on any noticeboards, or by advertising the vacancy in any personnel bulletins, or by the distribution of a special notice to all employees. Rate of Pay - The annual, monthly, fortnightly, weekly or hourly salary or wage specified in the award, together with any over-award payment regularly made, award based allowances and any non-salary benefits which are included in an employee's salary package at the value attributed to such benefits in the salary package agreement or which are granted to an employee as a condition of employment, or as a result of an industrial agreement between the employee and the employer which forms part of the normal annual, monthly, fortnightly or weekly salary or wage or non-salary benefits, but does not include travelling allowances or incidental payments. Redundancy - A situation where, as a result of a regulation or a decision made by the successor local government, an office or position within the successor local government is to be abolished and redundant has the same meaning. Regulation - A regulation made pursuant to section 106 of the Local Government Act 1993, the effect of which is to cause the abolition of an area and merging the area with another area, changing the external boundaries of an area or creating a new area. Retrenchment - (1) The compulsory termination of the service of an employee for the reason that in the opinion of the local government: (a) The employee's service is not necessary; or their position is redundant; or (b) The work for which the employee was engaged is finished (except in the case of the expiration of a contracted period of service or the completion of a contracted task); or (c) The quantity of work has diminished and has rendered necessary a reduction in the number of employees; or (2) The voluntary termination of services by an employee which in the opinion of the local government is effected in anticipation of a compulsory termination referred to in paragraph (1) and voluntary early retirement has the same meaning; or (3) The non-employment of an employee, who is an apprentice, immediately after the end of the period of apprenticeship; (4) The termination of the employment of an employee as a result of a decision by the independent arbitrator pursuant to clause 9. Salary/Wage - For the purposes of clause 7 means the annual monthly, fortnightly, weekly or hourly salary or wage specified in the award, together with any salary benefits which are included in an employee's salary package at the value attributed to such benefits in the salary package agreement. Service - Continuous service by an employee with a successor local government and any other period during which the employee was employed by a Queensland local government council, including Brisbane City Council, but where there has been an interruption of more than six months between such period of employment, or where any retrenchment payments have been made in respect of that previous service, any period prior to that interruption or payment shall be disregarded. Successor local government - A local government which has been either - * newly created by abolishing two or more local government areas and merging all or parts of those areas, or * expanded by the addition of a part or parts from a local government area or areas. Unless identified specifically as either newly created or expanded, the term shall be taken as applying to both situations. Transferred Employee - An employee of a former local government, immediately prior to the date specified in the regulation as the operative date of the change specified in the regulation. 7.5 Clause 5 - Advice of Regulation Implementing Changes Following Review (1) Implementation of reviewable local government matters reported upon by the Commissioner is by regulation published in the Government Gazette. (2) As soon as possible after the publication of the regulation, the involved local governments shall notify all employees, relevant unions and associations of the regulation and of the processes to be followed. 7.6 Clause 6 - Selection and Appointment of Personnel to Interim Positions and Transitional Arrangements The selection and appointment of persons to interim positions and transitional arrangements in relation to the establishment of a newly created successor local government shall be in accordance with the following guidelines and parameters:- (1) Transitional arrangements following the implementation of an abolition and merger decision shall be as follows: (a) A Joint Transitional Committee be established to oversee all matters in relation to: (i) interim arrangements for the operation of the newly created successor local government; and (ii) appointment of persons to the positions identified in the Interim Organisational Structure (IOS) determined by the Commissioner. (b) Decisions of the Joint Transitional Committee are to be ratified by the councils to be abolished and merged prior to implementation. However, if any of the councils involved do not ratify or fail to consider within a reasonable time decisions of the Joint Transitional Committee, the matter shall be referred to the Minister for Housing, Local Government and Planning for determination. (c) Membership of the Joint Transitional Committee may be recommended by the Commissioner from members of the former local government councils to be abolished and merged. The number of members and the proportion of members from the councils involved shall be determined by the Commissioner on a case by case basis, having regard to the views and opinions of the councils. (d) An IOS for the newly created successor local government shall be established including the positions of CEO and Divisional or Departmental Heads as determined by the Commissioner, having regard to the views and opinions of the councils. (e) The purpose of the IOS is to establish a mechanism for: (i) Advising the Joint Transitional Committee on all necessary interim organisational, operational, administrative and financial arrangements for the newly created successor local government; (ii) Providing organisational assistance to the newly created successor local government council with permanent appointments to the positions covered by the IOS; (iii) Advising and assisting the newly created successor local government council on permanent organisational, operational, administrative and financial arrangements. (f) Appointment to positions within the IOS by the Joint Transitional Committee shall be from amongst existing employees of the former councils to be abolished and merged. (g) A person appointed to a position within the IOS shall be appointed to that position for a maximum period of six months after the election of the newly created successor local government council, or until (i) The appointment of that person or another person to that position on a permanent basis; or (ii) The prior resignation or retrenchment of that person whichever is the sooner. (h) (i) Persons appointed to positions within the IOS shall, prior to the actual establishment of the newly created successor local government, retain their existing terms and conditions of employment. (ii) Upon the establishment of the newly created successor local government, they shall be paid in accordance with appropriate awards or industrial agreements in relation to their employment with the newly created successor local government council. (i) Persons appointed to positions within the IOS who are subsequently retrenched shall have their entitlements assessed on the basis of their employment prior to appointment to the position within the IOS. (j) Appointments to permanent positions covering the positions created in the IOS shall be concluded within six months after the fresh election for the newly created successor local government council, or a longer period if approved by the Minister for Housing, Local Government and Planning. 7.7 Clause 7 - Selection and Appointment of Personnel to Permanent Positions (1) An employee of a former local government shall be employed by the successor local government in a position and be classified according to the duties and responsibilities of the position, having regard to the provisions of the relevant award. (2) Where an employee of a former local government is appointed to a position in the successor local government which has a salary/wage which is lower than the salary/wage applicable to their position in the former local government, salary/wage maintenance by means of a personal classification will apply for a maximum of one year from the commencement date of the employee appointed to the position. 7.8 Clause 8 - Redundancy and Retrenchment (1) The existing local governments shall not, from the date of gazettal of the Regulation, retrench any employee. This does not preclude the suspension or dismissal of an employee for disciplinary reasons or, notwithstanding clause 4 and this clause, the voluntary early retirement of an employee on terms and conditions in accordance with these guidelines. (2) A successor local government may only declare an office or position redundant, or retrench an employee in accordance with the provisions contained herein. (3) (a) A successor local government may declare an office or position to be redundant. (b) Provided that where a successor local government determines that a position should be made redundant, the successor local government shall try to re-deploy the employee to a suitable position within the successor local government. (4) Where an employee is appointed to a position in a successor local government in accordance with clause 7(2) or is redeployed to a position in accordance with clause 8(3)(b) the employee may seek to be offered by the successor local government voluntary early retirement in accordance with clauses 9 and 13. (5) Where an employee is not redeployed or not appointed to another position by resolution of the successor local government, the employee must be given written notice offering voluntary early retirement. (6) Where an employee: (a) rejects the offer of voluntary early retirement by written notice signed by the employee; or (b) fails to accept the offer of voluntary early retirement by written notice signed by the employee within two months of the offer being given - the successor local government may retrench the employee. (7) Where an employee is to be retrenched in accordance with clause 8(6): (a) The successor local government shall by written notice advise the employee concerned, all relevant unions and associations and the Local Government Superannuation Board within 14 days of its decision thereof but not less than three months prior to the retrenchment. (b) Notification under this section shall include the name, classification and reason for the retrenchment of the employee. (8) An employee, having been notified of retrenchment, shall be granted: (a) Up to one day's time off without loss of pay during each week of notice for the purpose of enabling the employee to find suitable alternative employment to a maximum of 13 days. (b) If the employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment, the employee shall at the request of the employer, be required to produce proof of attendance at an interview or other employment related inquiry or action, or the employee shall not receive payment for the time absent. For this purpose a statutory declaration will be sufficient. (c) The option to leave within the three months notice period specified under subclause (7)(a) of this clause without loss of severance entitlements or retrenchment rights and the payment in regard to those entitlements and rights shall be calculated to the date service actually terminates. (d) Training assistance on job search skills. (9) (a) The terms and conditions of such retrenchment shall be in line with these guidelines and parameters. (b) An employee may at any time request their union be present during any negotiations under this clause (c) The successor local government shall notify the relevant union of negotiations under this clause within 14 days of its decision to commence negotiations. 7.9 Clause 9 - Redeployment and Employment Procedures (1) If as a result of a merger or a restructuring an employee's duties or responsibilities are to be materially altered in accordance with clause 7 or the employee is to be transferred to an alternative place of employment within the local government area of the successor local government, the successor local government must give the employee and the relevant Union notice in writing thereof within 14 days of the council decision thereof. (2) (a) Notwithstanding clause 8 an employee may within two months of receiving such notice, apply to their employer to be retrenched. (b) Where the successor local government declines to retrench an employee who has applied in accordance with paragraph (a) hereof, the employee may appeal the decision to the independent arbitrator. (c) The independent arbitrator shall only determine that an employee be retrenched if the employee demonstrates that: (i) The material alteration to duties and responsibilities severely affects the employee such as to warrant rejection of the offer; or (ii) The transfer to the alternative place of employment substantially disadvantages the employee such as to warrant rejection of the offer. (3) A local government to which subclause (2) applies shall be entitled to leave the office or position vacant or to abolish the office or position in question. (4) If the employee agrees to relocate to the alternative place of employment and the successor local government does not provide transport to the alternative place of employment, the successor local government shall pay compensation for reasonable excess travelling expenses or relocation expenses. Any dispute which arises in relation to compensation for reasonable excess travelling expenses or relocation expenses shall be determined according to the disputes settling procedure as set down in clauses 14 to 17 of this document. 7.10 Clause 10 - Superannuation The benefits payable on retrenchment shall be in accordance with the normal benefits prescribed under the conditions of the Local Government Employees Superannuation Scheme or the Brisbane City Council Superannuation Fund and Brisbane City Council Occupational Superannuation Plan, whichever is applicable in the circumstances. 7.11 Clause 11 - Transfer of Accrued Benefits (1) Long service leave credits, annual leave credits, sick leave credits, and any other entitlements accrued as a consequence of the period of employment with the former local government shall be preserved and transferred to the successor local government. (2) A certificate signed by the CEO of the former local government showing the employee's accrued credits shall be provided to the successor local government, prior to the date the successor local government is established. (3) Payments normally due and payable by a local government for and on behalf of an employee who takes up employment with another local government shall be paid by a former local government to a successor local government. 7.12 Clause 12 - Advertising of Positions (1) A successor local government shall, for a period of not less than 24 months from the operative date of the change specified in the regulation, not fill any vacant position unless applications are invited from within the former local government service by internal advertising. Whether or not an appointment is made, all applicants shall have the right of appeal to an independent arbitrator on the grounds that they were a suitable applicant. Relative merit is to be used as the basis of selection between a number of employees who are considered for a single position. Should there either be no appeals or in the event of appeals, no successful appellants, then the position may be advertised externally. (2) For the position of CEO, a successor local government shall be entitled to simultaneously advertise both internally and externally in the first instance. If an appointment is made of either an external or internal applicant, any unsuccessful internal applicant may exercise the right of appeal contained in subclause (1) above. This right of appeal must be exercised by an internal applicant within seven days of advice of their unsuccessful application. (3) Notwithstanding subclause (1), a successor local government may, with the approval of the appropriate unions, appoint transferred employees to positions determined by the successor local government to be part of its organisational structure and staffing establishment by the "best fit" method. The "best fit" method involves the direct appointment of persons to positions in the successor local government generally similar in functions, responsibilities and remuneration to the positions held by the persons in the former local governments, particularly field staff positions where all or most of the positions of the former local governments are to be maintained by the successor local government. (4) The approval of the appropriate unions to the use of the "best fit" method shall not be unreasonably withheld and any such action may be the subject of a dispute to be determined according to the provisions set down in clauses 14 to 17. (5) The appointment of a person to a position by the "best fit" method does not preclude that person from exercising all existing rights of appeal under these guidelines. 7.13 Clause 13 - Payments on Retrenchment or Voluntary Retirement (1) This clause applies to an employee who is retrenched or voluntarily retires in accordance with these guidelines. The employee is entitled to a payment equal to the employee's salary/wage for two weeks for each year of service and a proportionate amount for an incomplete year of service. However, the employee: (a) must receive an amount equal to the employee's salary/wage for four weeks: but (b) must not receive an amount more than the employee's salary/wage for 52 weeks. If the employee applies for or accepts an offer to voluntarily retire within two weeks of the offer being made, the employee is also entitled to a further payment equal to the employee's salary/wage for thirteen weeks which shall apply from a date not longer than two weeks after the offer is accepted. This benefit includes payment in lieu of notice. This benefit reduces by the equivalent of one weeks salary/wage for each weeks delay in exiting the local government. An entitlement to a payment under this clause is in addition to any other entitlement to payment under these guidelines or otherwise. (2) All calculations under subsection (1) shall be made on the normal rate of pay. (3) An employee may, by arrangement with the successor local government elect to take long service leave when due in order to defer the retrenchment of other employees. (4) Where an employee having received payments under this clause is, at some future date, retrenched following the issuing of a regulation, shall not be entitled to such payments with respect to service recognised for the purposes of calculation of the previous entitlements. (5) The payments payable under this clause shall not exceed the amount which the employee would have earned if employment with the former local government or successor local government had proceeded to the employee's normal retirement date assessed in accordance with the provisions of the Local Government Employees Superannuation Scheme. (6) The successor local government shall apply to the Deputy Commissioner for Taxation to have any payments made under this clause approved as a bona fide redundancy payment or early retirement scheme benefit under Ss 27E and 27F of the Income Tax Assessment Act. Such application shall be made within 14 days of the date of the decision to make a payment under this clause. 7.14 Clause 14 - Disputes Between Parties (1) Any dispute arising from the operation of these guidelines and parameters shall be determined in accordance with the procedures laid down in this clause and clauses 15 to 17. . . . 7.15 Clause 15 - Notice of Dispute . . . 7.16 Clause 16 - Independent Arbitrator . . . 7.17 Clause 17 - Disputes Settling Committee . . ." I certify that this and the preceding 51 pages are a true copy of the Reasons for Judgment of His Honour Justice Madgwick. Associate: Dated: 13 May 1996 APPEARANCES Counsel for the Applicants: M Amerena Solicitor for the Applicant: Nall Payne Craswell Counsel for the Respondent: G Martin Solicitor for the Respondent: Clayton Utz Date of hearing: 22 November 1995