DECISION NO: 179/96 CATCHWORDS INDUSTRIAL LAW - REDUNDANCY - construction of redundancy agreement - whether employee in the circumstances had a right to severance pay - whether there was a position redundancy - "redundancy" - "redundant" - whether "a major portion of" the work of the position formerly held by the employee was to be performed by the occupant of the position to which the employee was appointed - whether the position offered to the employee was "directly comparable" to the position formerly occupied - whether an unregistered industrial agreement conferred only on the employer the right to terminate a redundant employee's employment - whether an unregistered industrial agreement contemplated that several attempts may be made by the employer to redeploy a redundant employee - purpose of the unregistered industrial agreement - whether termination through retrenchment includes termination at the initiative of or by an employee - "retrenchment" - "retrench" INTERPRETATION - Awards - whether evidence of post contractual conduct in construing a contract is admissible Industrial Relations Reform Act 1933: s 64 Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 Short v FW Hercus Pty Ltd (1993) 40 FCR 511 Quality Bakers of Australia Limited v Goulding, 23 June 1995, Beazley J, unreported Jones v Department of Energy and Minerals, 16 June 1995, Ryan J, unreported Jones v Dunkel & Anor (1959) 101 CLR 298 McCulloch of Canada Ltd v Canada (Anti-Dumping Tribunal) [1978] 1 FC 222 Commissioner for Superannuation v Bayley (1979) 28 ALR 293 Lawrence v Clutha Development Pty Ltd, 10 May 1985, Keely J, unreported Chantler v Local Government Superannuation Board (1985) 9 IR 284 Australian Workers Union NSW Branch v Roads & Traffic Authority (NSW) (1989) 29 IR 202 Preference to Unionists Case (1977) LBC Current Review 218 Re Montgomery and Commissioner for Superannuation (1985) 3 AAR 69 Re Beverage Packers (Australia) Pty Ltd (1990) VR 446 Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1981) 149 CLR 337 Seamen's Union of Australia v Adelaide Steamship Co Ltd & Ors (1976) 46 FLR 444 PREI v QANTAS Airways Ltd (1984) 10 IR 1 PKIU v Davies Bros Ltd (1986) 18 IR 444 Australian Workers Union, NSW Branch v Allied Constructions Pty Ltd (1988) 27 IR 37 City of Wanneroo v Holmes (1989) 30 IR 362 Re Security Officers (Waterfront) Award (1988) 26 IR 1 Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310 Spunwill Pty Ltd v BAB Pty Ltd (1994) 36 NSWLR 290 R v Industrial Court of South Australia; Ex Parte General Motors - Holden's Ltd (1983) 35 SASR 161 No. SI 114 of 1994 DAVID NEIL hawkins and anor v commonwealth bank of australia Moore J Sydney 15 May 1996 IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA SOUTH ) No. SI 114 of 1994 ) AUSTRALIAN DISTRICT REGISTRY ) BETWEEN: FINANCE SECTOR UNION AND DAVID NEIL HAWKINS Applicants AND: COMMONWEALTH BANK OF AUSTRALIA Respondent JUDGE: Moore J PLACE: Sydney DATE: 15 May 1996 ORDER OF THE COURT THE COURT ORDERS THAT: 1. The application is dismissed. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules. IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA SOUTH ) No. SI 114 of 1994 ) AUSTRALIAN DISTRICT REGISTRY ) BETWEEN: FINANCE SECTOR UNION AND DAVID NEIL HAWKINS Applicants AND: COMMONWEALTH BANK OF AUSTRALIA Respondent JUDGE: Moore J PLACE: Sydney DATE: 15 May 1996 REASONS FOR JUDGMENT Introduction On 23 February 1994 an application was filed in the South Australian District Registry of the Federal Court of Australia. The applicants were the Commonwealth Bank Officer's Association ("CBOA") and David Neil Hawkins ("Hawkins"). The CBOA has since amalgamated and its membership forms part of the membership of the Finance Sector Union of Australia ("FSU"). I will refer to Hawkins and FSU collectively as the applicants. The application was accompanied by a statement of claim. The applicants sought certain declaratory orders concerning the operation of an unregistered industrial agreement entitled "The Commonwealth Bank of Australia Redundancy Redeployment and Retrenchment Agreement 1990" ("the Agreement"). A further order was sought requiring the respondent, the Commonwealth Bank of Australia ("the Bank") to pay Hawkins the sum of $163,076.15. An amended application was filed on 19th July 1994 together with an amended statement of claim. An amended defence was filed in August 1994. These became the pleadings identifying the issues in the proceedings with an exception I refer to shortly. Though the proceedings were originally commenced in the Federal Court of Australia they were dealt with by a judge of the Industrial Court of Australia by operation of s64 of the Industrial Relations Reform Act 1993. The proceedings commenced in substance in March 1995 and continued for 7 hearing days. The liability of the Bank depended, in part, on whether Hawkins' position with the Bank had become redundant in October 1993. A question arose during this period as to whether this was put in issue by the Bank having regard to the pleadings. I ruled that it was in issue. The proceedings were adjourned to dates in August 1995 at which time the applicants sought to amend the application to allege that the Bank was estopped from denying that Hawkins had become redundant in late 1993. I gave leave to the applicants to amend the pleadings though I also acceded to an application by the Bank to be given some time to consider the amendment and how it might affect their case. The Bank had not, at that time, commenced to call its evidence. As a consequence, the matter could not be concluded in the time that had been set aside though some of the hearing days fixed for August 1995 were used for the purpose of taking some further evidence and dealing with an issue concerning the admissibility of certain documents. The application was adjourned to dates in January and February 1996 when the hearing concluded. Neither party raised any issue about the jurisdiction of the Court to hear and determine the application which, in substance, involves the construction of the Agreement and its application to the facts. The legal right that Hawkins is seeking to enforce is a right directly arising under his contract of employment with the Bank that was at least partly in writing. As will shortly be apparent the terms of the Agreement are indirectly incorporated into that written contract. The factual background The following reflects, in a narrative form, the circumstances that gave rise to the application. It represents findings of fact I have made which, in many respects, arise from uncontentious evidence. I have dealt with events I view as material. Where there is a relevant fact in issue that I view as material I discuss the evidence and the findings I have made based on it. Hawkins has just turned 50. He is married with one child. He commenced employment with the Bank in February 1963. Thereafter he occupied a number of positions in the Bank all of which, with one exception, were in South Australia. The positions involved a mix of administrative tasks and banking specific work and were at a progressively more senior level within the Bank. Between July 1985 and March 1989 Hawkins worked for the Bank in the United States of America. He returned to work for the Bank in South Australia in early 1989. The position he assumed upon returning to South Australia was Chief Manager of the Capital office of the Bank. In that position Hawkins directly controlled approximately 170 staff working in five departments in the Bank. Those departments were Retail Banking, International Trade, the Capital Office and Lending Department, Corporate International and Treasury. He then had a discretion to authorise loans by the Bank of up to seven million dollars and a joint authority shared with the General Manager of South Australia, Mr Chesterman, to authorise loans up to ten million dollars. He held this position in early 1990 when the organisation of the Bank's business underwent change so as to separate two of the major areas of the Bank's operations, namely retail banking and institutional banking. As a consequence, various positions were created in the Bank including that of Head of Institutional Banking, South Australia which was filled by Hawkins. That position was abolished in October 1993. The duties Hawkins performed in the position of Head of Institutional Banking were in issue. It is convenient to deal with the evidence on that matter later in this judgment. It is sufficient to note that shortly after the creation of the position of Head of Institutional Banking, South Australia it was graded at a level of Senior Executive. The grades of executive positions in the Bank during the relevant period were, moving from the lower to more senior levels, Manager (MA) at the lowest relevant level, then Manager (MB), Manager (MC) Executive (EA), Executive (EB) and at the highest level, the position of Senior Executive. The level of Senior Executive is referred to within the Bank as SE which is a term I will adopt in this judgment. On the 18th January 1991 a written employment agreement between the Bank and Hawkins was signed on behalf of the Bank. It was signed by Hawkins on 5 March 1991 and was expressed to operate on and from 10 August 1990. The relevant provisions are: "4. The Employee shall be employed in the capacity of Senior Executive. 5. The Employee shall observe and be subject to the provisions of the Corporation's Circular Instructions Code of Conduct except as varied by this Agreement. The Employee will be subject also to the Commonwealth Banking Corporation Redundancy and Redeployment Agreement 1988. 6. This Agreement may be terminated - . by agreement in writing between the parties or at any time; or . by four weeks written notice by either party to the other party where there is no breach or alleged breach of the Corporations Code of Conduct. In other circumstances, reason for termination shall not be required." The industrial agreement referred in clause 5 was ratified by the Australian Conciliation and Arbitration Commission on 12 May 1988 which was also its commencement day. That 1988 agreement was superseded by the Commonwealth Bank of Australia Officer's Award 1990 which operated in conjunction with the Agreement, that is, the unregistered 1990 industrial agreement which is central to these proceedings. Later I will be referring to the provisions of the Agreement in some detail and for convenience I have set out the text of the entire Agreement as a schedule to this judgment. Hawkins continued in his role as Head of Institutional Banking, South Australia, till a further restructuring of some of the Bank's operations occurred in 1993. During that year steps were taken to restructure institutional banking in the Bank. This was done for several reasons, a significant one being to separate two functions which to that point had been jointly carried out by the same groups of Bank employees in the various states and in the head office of the Bank in Sydney. Institutional banking involves the lending of funds and the provision of bank services to clients of substance. Before the restructure the two principal functions of this area of the Bank's operations were firstly to market the services provided by the Bank and ensure that clients would, so far as possible, use the Bank for their commercial and banking activities, and secondly, to evaluate the risks associated with lending funds to any particular client. The Bank was progressively moving to a system of remuneration of officers by performance and the Bank viewed it as undesirable to have the same group of employees engaged in selling products of the Bank and evaluating the risks associated with the sale of those products. The word "products" appears to have wide currency and is thus one I will adopt notwithstanding its apparent sterility. As discussed later in this judgment, Hawkins' position of Head of Institutional Banking, South Australia, involved those two aspects of the Bank's functions. The position to which he was appointed in October 1993 would have resulted in Hawkins having a limited role in risk assessment and a primary role of selling the Bank's products. The reorganisation of institutional banking functions of the Bank involved significant changes to the deployment of personnel within the Bank. The immediate responsibility for implementing the restructure was that of Mr Russell Weaver who became the acting Head of Institutional Banking in December 1992. The task of more directly implementing the restructure was carried out firstly by a Mr Gary Mackrell and later by a Mr Craig McMorron. In June 1993 Hawkins became aware that the position of Head of Institutional Banking, South Australia, would be abolished. In either May or June 1993 Weaver spoke to Hawkins by phone. It was as part of a regular monthly telephone conference that Weaver conducted with all state managers and head office executives involved in institutional banking. During that telephone discussion Weaver informed those involved in the telephone conference that the restructuring of institutional banking was to go ahead and that there would be less senior executives needed, that is, officers graded at the SE level. He indicated to those involved in the conference that they should look at their own contracts and see what their entitlements and position might be. As part of his role in implementing the restructure McMorron prepared two documents. Their preparation involved the completion of two standard forms entitled "Job Evaluation". One, in appearance, was for the position of Relationship Executive at a SE level and took the form, in substance, of a generic job description created by providing answers to a questionnaire. It was to be submitted for evaluation by a job evaluation committee undertaking the classification and grading of new positions at that level. The other, in appearance, was for the position of Relationship Executive at the Executive level which again took the form of a generic job description created by providing answers to a questionnaire. It also was to be submitted to a job evaluation committee for the same purpose. Each document was signed, for the purposes of submission, by McMorron and Weaver in late May 1993. There appears to have been another questionnaire for a more senior position but that was not in evidence. At this time, Mr Lesley Moth, who was the Chief Manager, Remuneration Planning, was involved in the process of grading positions by application of the HAY system of job evaluation. The HAY system involved allocating points to a position having regard to established common criteria. Moth received a letter dated 2 June 1993 from McMorron in which McMorron sought to have established five levels of Relationship Executive, four of which were briefly described in the letter. In so far as the proposed structure involved positions at the SE level it was agreed to by a Senior Executive job evaluation committee, which accorded each of the positions indicative points derived from the HAY system. There were to be four levels of positions at the SE level. The remaining Relationship Executive position was not to be at the SE level but at the Executive level. Indicative points were to be given to that position by another committee. The task then began of assessing the positions likely to be created, in fact, in the Bank's operations in the various states and determining how that would fit into the structure that had been decided upon. On 6 July 1993 the Senior Executive job evaluation committee met and considered whether a Senior Executive position at SE level would be created in Adelaide. That Committee decided a position in Adelaide did not warrant grading at the SE level and persisted with the view not withstanding representations made to it to grade it at the SE level. On 9 July 1993 Hawkins spoke to Weaver by phone and they discussed the grading of the job in Adelaide at the Executive EB level and not the SE level. Weaver indicated he would persist with his attempts to have the position graded at the SE level. Representations were made by letters dated 13 July and 15 July 1993 to achieve that but they were ultimately unsuccessful. A circular was issued on 15 July 1993 identifying positions at SE level in the area of institutional banking which did not include a position at that level in Adelaide. A letter of the same date was sent to Hawkins from the Bank's Personnel Department informing him that 57 positions at the SE level were to be created and, in essence, inviting Hawkins to indicate if, as an officer then graded at the SE level, he wished to be considered for any particular position. The letter said, in part: "Restructuring will reduce the number of senior executive positions in some areas, and significantly change others. Some will become redundant." On 28 July 1993 Hawkins spoke to McMorron and was told of the failure of the attempt to have the Adelaide position reclassified as SE. Another representation had been made by letter dated 20 July 1993. Also on the 28 July 1993 Hawkins spoke to Weaver about the same mater. There was some discussion about Relationship Executive positions at SE level in Victoria and Weaver said to Hawkins that "there was mileage in your career yet". On 10 August 1993 Hawkins met in Adelaide with Mr John Matthews who was then the Chief Manager, Staff Development Division, Personnel Department. There was a discussion about Hawkins' position. The recollection of Hawkins and Matthews as to what was said do not coincide, though the differences in their recollection are not material. There was a discussion about why Hawkins wanted to remain in Adelaide involving the education of his son and his elderly parents. There was discussion about Hawkins aspirations to become the State General Manager in South Australia, the position then held by Chesterman. There was a discussion about the possibility of Hawkins working in another state and the benefits that would be provided if he was ultimately to apply for the position of State General Manager. There was also discussion about other positions that might be available to him in South Australia. On 30 August 1993 Chesterman wrote a letter to Mr I Payne, Executive Director of the Bank. It was, in essence, a letter of complaint about some elements of the restructuring. One matter of complaint concerned the position of Hawkins in respect of whom Chesterman wrote: "On the Senior Executive issue it is my understanding that, as the Senior Executive positions regrettably have been down graded or abolished, voluntary retrenchment is an option open to David and Claude." Hawkins was shown a copy of this letter by Chesterman a day or so after it was sent. In probably late August 1993 Hawkins was informed that a position in Adelaide at the SE level, outside institutional banking, in which he had expressed an interest to Chesterman and probably Matthews, had been filled by another officer who was junior to Hawkins. On 17 September 1993 Hawkins had a phone conversation with Weaver and Mr Michael Duffy who were using a conference phone. Duffy was then Senior Manager, Management Development. There was an issue about what was said. It was a matter about which Hawkins, Weaver and Duffy gave evidence. Their accounts of what was said differed in several respects. One is potentially material. My impression of each of them as witnesses was that they were generally endeavouring to give a truthful account of their recollection of the conversation. Nothing really turns on demeanour or my observations of them as a witness. It is common ground that an offer was made to Hawkins in this conversation of a position at the SE level in Melbourne involving an increase in remuneration of approximately $10,000 per annum. In the conversation there was a question asked by Hawkins about housing. Duffy recalled it was answered by Weaver, Weaver recalled it was answered by Duffy. At one point Hawkins suggested it was answered by Weaver. The critical element of the conversation was a statement Hawkins said was made by Duffy. It was in response to a question by Hawkins about what his alternatives were. Hawkins stated that Duffy replied that the alternative was to accept redundancy. That this was said was denied by Duffy whose evidence was that Hawkins asked what his options were "in reference to my potential entitlements to redundancy". Duffy said he answered by saying "You can read the R & R agreement as well as I can". Duffy's version was supported by Weaver though Weaver was uncertain in his recollection of what was said. Hawkins said, both when giving evidence orally and in a written statement he prepared prior to the hearing, that he was shocked by what Duffy had said though conceded in cross-examination that he believed, prior to 17 September 1993, that if he was classified at an EB level he could opt to leave the Bank and take his full retrenchment benefits. Hawkins made a written note of the conversation as he had of other phone conversations. There is no reference in the note to retrenchment. This, in my opinion, is decisive. Had Hawkins been shocked by what Duffy said then it is likely he would have made some note of it having been said. There was none and in cross-examination Hawkins could offer no satisfactory explanation as to why other aspects of the conversation had been noted but not this aspect. It is probable, and I find, that Hawkins had turned his mind to retrenchment prior to the phone conversation with Duffy and Weaver. That is consistent with a casual conversation Hawkins probably had just prior to 17 September 1993 with a Mr Robins, a personnel consultant, about the possibility of employment outside the Bank. I also find that with the possibility of retrenchment then in his mind, Hawkins raised the issue of entitlements to redundancy payments in the context of a job being offered away from Adelaide where he was then settled with his family and parents. I do not accept that Duffy volunteered that the alternative to accepting the position in Melbourne was to accept redundancy. On Monday 20 July 1993 Hawkins rang Weaver. During that conversation Hawkins was told that he had, as an option, remaining in Adelaide in an overgrade position. That is, in a position in which he would be paid a salary at SE level notwithstanding that the position was graded at a lower level. There was some discussion about what upwards adjustments might be made to the salary in the future. This was a matter of concern to Hawkins. That day Hawkins also received a phone call from a Mr Colin Whyte, an associate of Robins, in which there was a discussion about the availability of position outside the Bank. Hawkins had a similar conversation with Robins three days later. On 24 September 1993 the SE positions in the Bank arising from the restructure were announced, Hawkins was not one of them. In late September or early October 1993 Hawkins spoke to Ms Carol Rimmer in the remuneration area of the Personnel Department at the head office of the Bank. Hawkins was enquiring about how much he would be paid in the event of him being retrenched. On 5 October 1993 a document was published by the Bank identifying appointments made in South Australia as a result of the implementation of the restructuring. It took the form of a list of names identifying two positions, namely the position from which they were being appointed and to which they were being appointed. For Hawkins the former was "Head of Institutional Banking SA ... SE" and the latter was "Relationship Executive Banking Services SE (EB)". The notation "SE (EB)" signified an overgrade position. About two weeks later Hawkins became aware of the details of his responsibilities as a Relationship Executive. At about this time Hawkins began to think seriously about whether he would remain with the Bank. He made approaches to four or five people in business in Adelaide about positions that might be available. In late October 1993, Hawkins responded to a newspaper advertisement in which the contact person, Mr Bob Kennedy, was a long time friend of Hawkins and a partner in a local accounting firm. They spoke by phone and discussed not only the advertised job but other employment. As a result, some two weeks later, Hawkins was contacted by Kennedy and was invited to his office and there met a Mr Alf Stratton, the Managing Director of Stratco (SA) Pty Ltd ("Stratco"). There was discussion about Hawkins joining Stratco. Hawkins was then offered a job. This was 11 or 15 November 1993. On probably 14 November 1993, Hawkins spoke to Mr James Pearson who was the Personnel Manager of the Bank in the State Office in South Australia. There was a divergence in the accounts of their conversation. Hawkins account of the critical part was that he said: "Can you tell me when the three month period referred to in the Redundancy Agreement commences in respect of me?" Pearson's recollection of the critical part was that Hawkins said: "I am considering my position following my appointment in an overgrade capacity to an EB position of Relationship Executive. For my own purposes I need to know the effective date of commencement of that position. Would you confirm that to me in writing?" Pearson, like Hawkins, appeared to be giving an honest account of what he recalled of that conversation. However the terms of a letter sent the following day lends some support to Hawkins account, that is, his inquiry included a reference to the Agreement. The letter from Pearson read: "15 November 1993 Dear David, Date of Commencement Institutional Banking SA/NT Continuous Improvement Programme (C.I.P.) This is to confirm my verbal advice sourced from Senior Manager Personnel, Institutional Banking Head Office that 1 December 1993 is to be regarded as the effective date of operation of C.I.P. related changes to Institutional Banking in SA/NT. Accordingly, 1 December 1993 is the appropriate commencement date for all entitlements, salaries, and options contained in the Commonwealth Bank of Australia Officers' Award 1990 and the Commonwealth Bank of Australia Redundancy, Redeployment and Retrenchment Agreement 1990 arising from C.I.P. related staff placements. Yours sincerely, J R Pearson Manager Personnel" Probably on 25 November 1993 Hawkins spoke to Stratton and indicated interest in working for Stratco. Hawkins inspected Stratco's premises on 29 November 1993. On 30 November 1993 he had a phone conversation with Stratton in which Hawkins and Stratton agreed he would take up a position with Stratco. During this period senior officers of the Bank were reviewing the grading of the Relationship Executive positions in Adelaide. Not only had Hawkins' new position been referred to in the document of 5 October 1993, but reference was made to the creation of a position of Relationship Executive, Banking Services EB (EA). It had been proposed that this position would be filled by Mr Joseph Jackson who had, till then, occupied the position of Senior Manager Corporate graded at the Executive EB level in Adelaide. The position proposed for him was to be at the more junior Executive EA level though he, like Hawkins, would occupy the new position as an overgrade position. However Jackson decided to leave the Bank and on 22 November 1993 he wrote advising the Bank of his "election to exercise the right of voluntary termination". Hawkins was aware of Jackson's intentions. In the last week of November 1993 the regrading of Hawkins' position was being considered on two different and conflicting basis. On 26 November 1993 the Managing Director of the Bank, Mr David Murray, approved the regrading of the position occupied by Hawkins to that of SE level. This was as the result of a representation by Mr John O'Brien, Head of Banking Services, that had its origins in the resignation of Jackson. The proposal embodied in a memorandum from O'Brien to Moth dated 25 November 1993, was that the position Hawkins would occupy would assume some of the responsibilities that had been proposed for Jackson. Somewhat curiously, other internal memoranda suggest that the position that had been proposed to be occupied by Jackson was, rather than being abolished, to be regraded upwards from Executive EA to Executive EB and that this was linked to the reclassification of Hawkin's position to SE level. An inference may reasonably be drawn that the hitherto disciplined application of the HAY system to grade positions was being overtaken by an approach involving more flexibly to accommodate the grievances of those individuals, and those that supported them, upon whom the application of the HAY system was operating to their detriment at least as they perceived it. The details of what occurred, however, I do not view as material. The relevant fact, which is not in issue, is that the position occupied by Hawkins was regraded to the SE level by, at the latest, 2 December 1993. On 25 or 26 November 1993 O'Brien rang Hawkins and asked him to attend a meeting in Sydney concerning the consequence of the resignation of Jackson. O'Brien did not tell Hawkins of the process in train to reclassify his position at the SE level. Hawkins and O'Brien spoke again by phone on 30 November 1993. Hawkins rang and informed O'Brien of his intention to leave the Bank. Again there was no discussion about the reclassification of Hawkins' new position. Notwithstanding Hawkin's reluctance to go to Sydney he was asked to do so by O'Brien. On 30 November 1993 Hawkins wrote the following letter and faxed it to Pearson: "Mr J R Pearson Manager Personnel SA & NT Commonwealth Bank of Australia ADELAIDE SA 30 November 1993 Dear Jim I am writing to inform you that I have elected to take voluntary retrenchment in terms of Clause (e) (x) of the Commonwealth Bank of Australia Redundancy, Redeployment & Retrenchment Agreement 1990. I think it appropriate that I provide the Bank with approximately four weeks notice before my departure, and would be pleased to discuss this matter further if required. I can honestly say that I have enjoyed and benefited from my almost thirty one years with CBA, and I wish the organisation well for the future. Kind regards (David)" Hawkins attended the meeting on 1 December 1993. In attendance were Hawkins, Mr Michael Katz, then Head of Institutional Banking, Mr Les Taylor, the Bank's Chief Solicitor, O'Brien, Moth and Matthews. Taylor indicated to Hawkins that he was not able to treat himself as redundant in the way he was intending so as to be entitled to retrenchment pay. Hawkins was told that approval had been given for his position to be reclassified to the level of SE. Hawkins was invited by Katz to tear up his letter of 30 November 1993. It is unnecessary to detail the various accounts of what else occurred at that meeting. It is sufficient to note that Hawkins was put on notice that the Bank did not accept that he was entitled to retrenchment pay and that he was advised that approval had been given for the regrading of his position. That latter matter was confirmed in a letter dated 2 December 1993, received by Hawkins on 8 December 1993, in the following terms: "Mr D N Hawkins Relationship Executive Banking Services Adelaide SA 2 December 1993 Dear David I refer to your letter of 30 November seeking retrenchment. As we discussed at our meeting on 1 December, your position has been sized at Senior Executive level and, accordingly, the provisions of the RR&R Agreement are not relevant to your employment with the Bank. On that basis your request for retrenchment cannot be approved. David, I felt that our discussions yesterday were very positive and have set a strong foundation for your ongoing role in Adelaide. Yours sincerely J E Matthews" Hawkins did not, at the meeting, agree to remain with the Bank. Rather he saw a firm of Adelaide solicitors who then corresponded with the Bank by letter dated 3 December 1993, asserting that Hawkins had a right to follow the course he was with a consequential right to retrenchment pay. The Bank responded by letter dated 22 December 1993 continuing to put in issue that entitlement. Hawkins remained in the Bank's employ till 11 February 1994. On 4 February 1994 he wrote to the Bank in the following terms: "4 February 1994 Mr M Katz Head of Institutional Banking Commonwealth Bank of Australia 48 Martin Place SYDNEY NSW 2000 Dear Michael, Further to my letter to you of 30th November 1993 wherein I indicated my election to take voluntary retrenchment pursuant to Clause (e)(x) of the Commonwealth Bank of Australia Redundancy Redeployment and Retrenchment Agreement 1990, and wherein I gave four weeks notice of my departure from the Bank, I am now writing to you to advise that I intend to cease work with the Bank at the close of business on Friday the 11th day of February 1994. I have worked beyond the conclusion of the 3 month "alternative work" trial period which finished on the 5th January 1994 as there were several major projects that needed to be brought to a conclusion before I felt I could responsibly leave in accordance with my notice earlier given. As indicated in my earlier letter I seek payment of retrenchment benefits due to me under the terms of the 1990 agreement in addition to my other ordinary "end of employment" benefits. I do not accept the arguments put by the Commonwealth Bank in its letter to Finlaysons of 22nd December 1993. The duties, authority and responsibilities of the position that I have been occupying since October are significantly diminished from those that I held prior to that date and it is not in any sense of the words a "directly comparable" position. Nor do I accept that it is in the Bank's power by unilateral action already given notice as to unsuitability and claimed retrenchment. I look forward to hearing from you and resolving this matter amicably. Yours faithfully, David N Hawkins c.c. Mr J Pearson Manager, Personnel SA/NT" Pearson responded by letter dated 8 February 1994 acknowledging receipt of the earlier letter and noting that Hawkins intended to leave on 11 February 1994. Upon leaving his employment with the Bank no payment was made to Hawkins by way of severance pay. At issue is whether there should have been. The construction of the Agreement - was there a redundancy The entitlement to severance pay and other monetary benefits under the Agreement depends, in all relevant respects, upon an employee having been retrenched. So much is apparent from the opening words of clauses (h)(i) and (k)(i) and (ii). "Retrenchment" is defined in clause (c) as the termination of employment as the result of redundancy. Thus the starting point in determining whether Hawkins was entitled to those benefits is whether the termination of his employment was associated with a redundancy. Redundancy is defined in clause (c)(iii) in the following way: "Redundancy" means a position redundancy - where work (or a major portion of it): (1) is no longer required to be performed; (2) is to be performed at a new location which requires a change in residence of the officer concerned; or (3) results from re-organisation; changed business practice; technological change; downturn in business; a decision to reduce the number of officers; or a general reduction in classification levels or positions. The definition is divided into three numbered paragraphs with a semi colon and the word "or" at the conclusion of the second and prior to the third. It reflects a drafting technique traditionally used to identify matters which each separately constitute the defined matter: see Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106. Thus, in form, the definition suggests that the matter referred to in each of paragraphs (1), (2) or (3) constitutes a "redundancy". Approached this way, the structure of the definition suggests the words in each paragraph should be read with and following the prefatory words "- where work (or a major portion of it)". If that is done in relation to paragraphs (1) or (2) the definition is intelligible. However in relation to paragraph (3) the definition would read, in an expanded form, "Redundancy means a position redundancy where work (or a major portion of it) results from reorganisation; changed business practice; technological change downturn in business a decision to reduce the number of officers or a general reduction in classification levels on positions". Set out this way, the definition makes little apparent sense. The applicants submitted that this aspect of the definition refers to the position created by a redundancy. Thus it refers to the work to be performed, in prospect, by an employee whose position becomes redundant. However not only might such an approach beg the question of what is a redundancy it is seemingly at odds with the accepted meaning or meanings of the word "redundancy" given that in this definition it is intended to define a position redundancy. I should note that on occasions in this judgment I refer to redundant employees or staff. That should be taken to be a reference to employees in a position that is a redundant one. The Bank submitted that paragraph (3) is to be treated as a concluding paragraph of general application. That is, it should not have been separately numbered and it qualifies and should be read with both paragraph (1) and paragraph (2). This involves ignoring the structure of the definition and, in particular, the semi colon and "or" at the conclusion of paragraph (2) and the separate numbering of paragraph (3). In support of this submission the Bank referred to an exhibit though it was tendered for another purpose. That document contained words to the same effect as paragraph (3) qualifying the whole of a similar definition. However, I place no reliance on the terms of the document. I have concluded that the definition should be construed in the way submitted by the Bank. I have already said that the definition makes little apparent sense if paragraph (3) is read as identifying a discrete basis upon which a position redundancy arises. A definition serves the purpose of ascribing a meaning to a word or expression which is to be applied in the document in which it appears. However the ordinary meaning of the word is not to be ignored in construing the definition. As stated in Bennion, Statutory Interpretation (2nd ed) at 414: "Whatever meaning may be expressly attached to a term, it is important to realise that its dictionary meaning is likely to exercise some influence over the way the definition will be understood by the court. As Richard Robinson said, it is impossible to cancel the ingrained emotion of a word merely by an announcement." The word "redundancy" has at least an accepted range of meanings if not a single accepted meaning. What might be comprehended by "redundancy" was discussed by Burchett J in Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 520-521. It might include any situation where the employer no longer wishes to have a job or task performed and would obviously include situations where that arose from technological or organisational change. What is redundancy has been considered by this Court on several occasions in the context of considering the operation of Part 3 Division VIA of the Act: see Quality Bakers of Australia Limited v Goulding 23 June 1995, unreported, Beazley J and Jones v Department of Energy and Minerals, 16 June 1995, unreported, Ryan J. It has an accepted meaning as describing a situation that might lead to termination of an employee's employment because the duties of a job or position are no longer to be performed by an employee as the occupant of that job or position and often as a result of technological or organisational change. It is consistent with the ordinary meaning of redundancy to treat paragraph (1) as reflecting that meaning, paragraph (2) as an extension of it, and paragraph (3) as identifying the circumstances in which a redundancy arises which attracts the operation of the Agreement. So construed this paragraph (3) limits the general operation both of (1) and (2). Further support for this construction of the definition is found in clause (b) which concerns the application of the Agreement. This clause says that the Agreement "should have effect" in situations where the Bank is implementing change that impacts upon working arrangements and could give rise to potential redundancy and/or redeployment situations. The Agreement is thus intended to apply when the Bank introduces change leading to redundancies. That is what, in substance, paragraph (3) of the definition of "redundancy" addresses. The construction I prefer is further supported by clause (d) which imposes a duty on the Bank to consult with the Union when the Bank commences to review a work area, practice or function that could give rise to a redundancy. Thus consultation must occur if changes might be made that could lead to redundancies. The matters that must be the subject of consultation correspond broadly with the matters identified in paragraph (3). In my opinion paragraph (3) of the definition of "redundancy" is intended to identify the circumstances in which either of the two events referred to in paragraphs (1) and (2) would constitute a redundancy. Thus, in the present case, it is necessary to consider whether the work of Hawkins, or a major portion of it, was no longer required to be performed and whether that arose relevantly, as a result of reorganisation. I should add that the definition speaks of a position redundancy. That is a reference, in my opinion, to a situation where the work done by an occupant of an identified position is no longer done by the occupant of that position and the position is abolished. That might be because the work is not done at all or the work is allocated to a range of other identified positions in which some of the reallocated work is done but is done in conjunction with other work. As Ryan J said in Jones (supra): "It has generally been accepted that a dismissal is not unfair if it results from genuine redundancy, in the sense that an employee is no longer required to perform his or her job because of changes in operational requirements. In R v The Industrial Commission of South Australia; ex parte Adelaide Milk Co-Operative Ltd (1977) 44 SAIR 1202, Bray CJ defined redundancy at 1205, where he stated: "a job becomes redundant when an employer no longer desires to have it performed by anyone." That definition was endorsed by a Full Bench of the Australian Conciliation and Arbitration Commission in the Termination, Change and Redundancy Case (1984) 8 IR 34, at 55-6. On Mr Jones' evidence, this case would not satisfy that narrow definition of genuine redundancy, as some of his former duties were still being performed. However, it should be noted that Bray CJ's description of what can constitute a redundancy is not expressed to be exclusive. His Honour's description was cast in terms of a "job" in the sense of a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer's organisation, to a particular employee. However, it is within the employer's prerogative to rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. It is inappropriate now to attempt an exhaustive description of the methods by which a reorganisation of that kind may be achieved. One illustration of it occurs when the duties of a single, full-time, employee are redistributed to several part-time employees. What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant in the sense in which the word was used in the Adelaide Milk Co-Operative case." What then were the changes in the duties of the position occupied by Hawkins. That involves an analysis of the work done by Hawkins in his capacity as Head of Institutional Banking, South Australia and as Relationship Executive under the new structure. I should, at this point, refer to two matters. The first is that what Hawkins did as Head of Institutional Banking, South Australia, was the subject of evidence from Hawkins and a number of witnesses called by the Bank including Weaver and Mr Malcolm Stott who was, at the relevant time Chief Manager in Group Treasury. Stott, in particular, appeared to put in issue Hawkins' account of his role in the treasury operations of the Bank which were conducted in Adelaide. This was so in relation to matters such as the degree of supervision Hawkins undertook of officers in that area of the Bank's operations. Stott was, at the relevant time, based in Sydney, though he visited Adelaide once or twice a year. However, he conceded this was "probably not as often as I should". The officer in Adelaide immediately responsible for treasury operations in that city was Mr Barry Corrigan. He is still employed by the Bank. Neither Corrigan nor Chesterman were called by the Bank to give evidence. Corrigan could plainly have given direct evidence of the extent of Hawkins' involvement in the Treasury's operations in Adelaide and it is likely that Chesterman could have given evidence of Hawkins role more generally. The applicants are entitled to rely on the failure of the Bank to call these officers to the extent permitted by the principle in Jones v Dunkel (1959) 101 CLR 298. If Hawkins' evidence is to be accepted then plainly his account of what he did provides the most reliable guide of his duties. I did not view his account of what he did as exaggerated or as apparently involving any misstatement of his work and I accept it. The second matter is that in some respects the evidence of what Hawkins did was somewhat obscure, at least to me, in that it proceeded on an assumed knowledge of what was entailed in some of the Bank's activities though what they entailed was not itself revealed in the evidence at least in any detail. Hawkins gave the following account of his duties as Head of Institutional Banking. He had been organisationally responsible for four departments, namely Corporate, Group Treasury, International Trade, and AFC Merchant Bank. He had, under his general control and supervision a staff of 57. Of his time, 80 per cent was taken with the operations of Corporate, 11 per cent Treasury, 7 per cent International Trade and a small portion on merchant banking. In so far as Corporate was concerned, Hawkins role was as the most senior manager. This department had a staff of 19 and its essential function was to lend funds, exceeding approximately 5 million dollars, to corporate clients either in response to a request by the client or as the result of a proposal put by the Bank. He was involved, as the most senior manager, in personnel issues concerning those staff. Hawkins had the authority alone to approve loans of up to 10 million dollars and jointly with another officer in Sydney of roughly equivalent rank, up to 15 million dollars. He had other authorities, sole and joint, to approve the provision of credit of greater amounts for shorter periods. He was also involved in securing approval of loan amounts in excess of his delegated authority which entailed forwarding of a submission he would sign to head office in Sydney and, on occasions, presenting the proposal to a committee of the Board of the Bank for its consideration. The provision of funds involved a credit assessment of the borrower which, depending on the size of the loan and the level at which it might be approved, would involve Hawkins. He was also involved in the management of accounts of indebted clients where the amount owing to the Bank could not be paid or paid in full. He would oversee the implementation of programs of debt repayment though, in relation to significant debt, that would be done in conjunction with an officer at head office. Hawkins did not have direct responsibility for the corporate clients. Rather, another more junior officer would be directly responsible for marketing, to a portfolio of corporate clients, products of the Bank. Hawkins did, however, have an involvement in marketing to clients and would visit clients premises with officers directly responsible for that client. In so far as Treasury was concerned, he performed a number of functions. He had daily contact with Corrigan. Hawkins examined daily a summary of the dealings of the Treasury and would review the monthly profit performance data. He was directly involved in the assessment of the performance of the seven officers and would countersign, after discussion, a quarterly assessment by Corrigan of the six officers who were his subordinates. Hawkins himself assessed Corrigan's performance. While the evidence is somewhat unclear, Hawkins held periodic meetings with officers including officers from Treasury to discuss performance. Hawkins was also involved in the resolution of disputes with clients of the Bank over disputed transactions undertaken by Treasury which would involve, on occasions, Hawkins discussing the matter with the client itself. In relation to International Trade, Hawkins had a personnel role similar to that exercised in relation to Treasury. He would sign assessments made by the manager of staff in the department and prepare a report on the manager's performance. He was generally involved in strategic planning for his department. He had authority to deal with disputed transactions as he had in relation to Treasury. Hawkins estimated that 30 per cent of his time was taken up with management. This involved personnel matters concerning not only performance assessment but what Hawkins described as "people problems" such as dealing with possible harassment cases and the review, it appears annually, of personal development plans of those officers he was directly involved in assessing. Another aspect of this work was the management of the departments, or units as he sometimes described them, in terms of their profitability and performance. The focus of his new position was to be narrower. At this point it is necessary, having regard to the pleadings, to consider the position Hawkins was to occupy on 5 October 1993 immediately upon the abolition, at least in a notional sense, of the position he then occupied. However, as a matter of fact, even though he was formally appointed to it in October 1993, the change in the duties from the old to the new was an evolutionary one as the new structure was implemented and other newly created positions filled. What precisely were to be his duties in the new position, at least in detail, were not entirely clear from the evidence. Job descriptions used to describe and grade positions arising from the restructure were generic. That is, they were to apply not only to the position to which Hawkins was appointed but other positions as well. They described, for example, the portfolio of clients to be managed by a Relationship Executive by reference to a number of clients, their status in the Australian business community and their business activity measured by turnover and the Bank's exposure to them. One such generic job description was, as I earlier noted, rejected as describing the position to which Hawkins was to be appointed. Another was apparently then viewed as appropriate though the client profiles did not accord entirely with the clientele of the Bank at the time. However what did emerge from the evidence was that the range of duties Hawkins would perform would be more limited. The new position was to have none of the personnel functions of the old position. He would no longer be responsible for managing a large group of employees of the Bank. The new position was to involve Hawkins having direct responsibility for marketing banking services or products to a smaller number of companies which were, in terms of their business activities, of the more significant of the larger group that had formerly been managed by the Corporate Department. He would have no direct managerial role in relation to the Treasury Department and International Trade. His role in credit assessment was to become indirect and collaborative rather than direct. At no point in the proceedings was it suggested that some other position would emerge from the restructure, to which Hawkins might be appointed but was not, which was substantially the same as the abolished position in all its facets. It is plain from the evidence that the position of Head of Institutional Banking was abolished. A literal reading of the definition might, as the applicants submit, indicate that if this was so, the former position did not exist at all and thus Hawkins was involved in a position redundancy. However the definition operates, not on names or titles, but on the aggregation of duties that constitute the position. It is thus necessary to consider whether "a major portion" of the work of the position formerly held by Hawkins was to be performed by the occupant of the position to which he was to be appointed, it being the only position identified by the Bank as substantially reflecting the work of the old position. The expression "a major portion" does not, in my opinion, invite a crude comparison of time spent on particular tasks or the determination of a mathematical majority. The expression appears in the context of a definition of redundancy and the character, in a qualitative sense, of the change must have a bearing on whether there is a position redundancy. The meaning of a similar expression, "a major proportion" was considered, in an entirely different context, by the Court of Appeal of Canada in McCulloch of Canada Ltd v Canada (Anti-Dumping Tribunal) [1978] 1 FC 222. The leading judgment was that of Jackett CJ who said: "[The] first submission was based on the contention that the word "major" in the expression "a major proportion of the total domestic production of those products" [as used in the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade, (June 30, 1967) Article 4(a)] required that the "domestic industry" represent more than one-half of the Canadian production. ... I have reached the conclusion that this contention is incorrect... My reason for rejecting the contention is that, when one examines the various senses that may be attributed to the word "major" ... the sense in which it is used in Article 4(a) is "significant" and not the more precise mathematical sense of more than one-half that may be dictated by the context, in certain cases, as, for example, where one speaks of the major of two portions of a whole. Reading the Anti-Dumping Act [R.S.C. 1970, c. A-15] in its entirety, the meaning urged by applicants' counsel for the word "major" would ... tend to frustrate in part the obvious intent of the statute. Similarly the expression in the Agreement is "a major portion" and for reasons similar to those expressed by Jackett CJ, the expression is a reference to a significant portion or part of the duties. In the present case, the position assumed by Hawkins had very few of the managerial functions that constituted a significant part of the duties of the position he formerly occupied. It involved a significant change in the duties that were, in my opinion, material. They constituted the loss of a major portion of the work performed by Hawkins in the position of Head of Institutional Banking, South Australia. He was thus involved in a position redundancy. The construction of the Agreement and its application to the facts Having concluded that there was a position redundancy in relation to the position of Head of Institutional Banking, South Australia it is necessary to consider how the Agreement operates in the circumstances. It is unnecessary to deal with the question of whether the Bank was, by its conduct, estopped from denying there was a redundancy. The operation of the Agreement may be summarised briefly. It is to be noted that clause (e) of the Agreement, which deals with redeployment, contemplates the Bank offering an employee occupying a redundant position, two types of alternative employment. One type is a "directly comparable position" which is defined in clause (c)(ii). I will return to the definition in due course. The other type of employment is a position that is not directly comparable. If an offer of this latter type is made it must be made in writing containing certain particulars: see clause (e)(ix). The employee is then afforded at least two weeks in which to decide whether or not to accept the offer: see clause (e)(iv)(2). Accepting the offer triggers the operation of clause (e)(x) and it is the proper construction of that clause that appears to have been viewed by the parties as critical to the resolution of this application. I refer to these provisions at this point so as to note the effect of the pleadings which have given rise to an element of artificiality in the proceedings. There is no evidence that Hawkins was made a written offer of the type referred to in clause (e)(ix). The evidence suggests he was not. There is no direct evidence of Hawkins having taken any period, whether two weeks or not, to consider the offer in the way contemplated by clause (e)(iv)(2). There is no direct evidence of Hawkins having, as a result of a written offer and after due deliberation, accepting the offer in the way that triggers the operation of clause (e)(x). The evidence suggests he did not. In the amended statement of claim the applicants pleaded: "16. On the 5th day of October 1993 the second-named applicant along with other employees of the respondent and members of the first-named applicant were appointed to alternative employment with the Bank pursuant to the provisions of Clause (e)(x) of the said 1990 Redundancy Agreement. The position to which the second-named applicant was appointed was Relationship Executive, Banking Services which was an Executive B level. 17. The position to which the second-named applicant was appointed on the 5th of October 1993 as referred to in paragraph 16 hereof was not a "directly comparable" position within the definition of that term in sub-clause (c)(ii) of the said Agreement... 18. Pursuant to the said provisions of sub-clause (e)(x) of the 1990 Redundancy Agreement the second-named applicant and other employees of the respondent and members of the first-named applicant commenced the 3 month trial period of employment." This was answered in the Bank's defence in the following way: "9. In answer to paragraph 16 of the Amended Statement of Claim, the CBA - (a) admits that on 5 October 1993 Hawkins was appointed to and commenced work in the position "Relationship Executive, Banking Services, International Banking, SA"; 10. ... 11. In answer to paragraph 18 of the Amended Statement of Claim, the CBA - (a) admits that on 5 October 1993 Hawkins commenced the three month trial period of employment referred to in subclause (e)(x) of the 1990 Agreement. (b) ..." As a result of these pleadings, the matter proceeded on the basis that an offer was made, considered and accepted in the manner contemplated by the Agreement. It thus followed that clause (e)(x) had application to Hawkins on and from the date he commenced the alternative employment and it was common ground that this was 5 October 1993. It was also common ground that this employment was not then in a directly comparable position because it was at a lower classification or grade. An uncontentious element found in the definition of "directly comparable position" is that the position is at the same classification within the Bank as the position giving rise to the redundancy. I return to consider the operation of the Agreement on the facts as I have found them or as they are agreed as a result of the pleadings. It is to be remembered that on 30 November 1993 Hawkins faxed to Pearson a letter indicating, by implication, that he found the position of Relationship Executive unsuitable and accordingly intended to leave the Bank on the basis that he was being retrenched. That communication was within the 3 month trial period which started on 5 October 1993. The critical issue in considering the application of the Agreement is whether it was open to Hawkins then to form the view that the alternative employment was unsuitable and then rely on that view at that time to enliven the operation of clause (e)(x) of the Agreement. That is, does the Agreement, properly construed, provide that either the Bank or the employee can form the view that the job was unsuitable at any time during the trial period of three months and rely on it. Alternatively must they wait till the end of the trial period to make that assessment and, if unfavourable, then rely on it. However the intended effect of clause (e)(x) is linked to two other questions arising in the proceedings, namely does the Agreement confer only on the Bank the right to terminate a redundant employee's employment, at least with a consequential right to severance pay, and whether the Agreement contemplates that several attempts may be made by the Bank to redeploy a redundant employee in one or a number of the ways identified in clause (e). Plainly each clause must be construed having regard to the Agreement as a whole and its purpose. The purpose of the Agreement apparent from its terms is to enable the Bank to restructure its workforce for reasons of the type referred to in clause (c)(iii)(3) and in so doing redeploy employees to other positions. However it also has the purpose of conferring a right to a special payment, severance pay, and to other benefits on an employee whose position has been made redundant, who cannot be redeployed and whose employment is terminated as a consequence. What is described as a key objective of the Agreement is identified in clause (b). It is to minimise the potential for industrial disputation in circumstances where change occurs or might occur and redundancies and redeployment might follow. Given the Agreement's stated key objective it is unlikely that it was intended by the parties that employees whose positions are made redundant by the action of the Bank could be required, before being entitled to severance pay, to remain in the employ of the Bank and be required to undergo as much retraining as the Bank saw fit or consider working in and, if agreed, work in as many alternative positions as the Bank might offer without objection from them or those that represent them. It is to be remembered that the entitlement to severance pay arises as the result of the loss of the position for which the employee was employed or into which the employee had agreed to be transferred by promotion or otherwise. The fundamental purpose of the Agreement was, in my opinion, to confer a measure of flexibility on the Bank in redeploying staff in redundant positions while giving a measure of certainty to employees as to their future if their positions become redundant as a result of the action of the Bank. It is unlikely, in my opinion, that the Agreement was intended to confer a right on the Bank to continue to redeploy an employee as much and as often as it wished till it was satisfied that no further redeployment was practical or even possible prior to an employee being entitled to severance pay. Returning to the specific provisions of the Agreement, the right to severance pay in clause (h) arises when there has been "termination through retrenchment" . A matter of some importance in understanding the operation of the Agreement is, in my opinion, whether "termination through retrenchment" includes termination at the initiative of or by an employee. "Retrenchment" connotes termination by the employer. The Macquarie Dictionary relevantly defined "retrench" as: "to sack or dismiss, as part of an effort to economise." and "retrenchment" as: "the act of retrenching; a cutting down or off; reduction of expenses." The meaning of the word "retrenchment" was considered by Lockhart J in Commissioner for Superannuation v Bayley (1979) 28 ALR 293 at 310-311 and it is reasonably clear that his Honour viewed it as relating to termination by an employer: see 311.1, though he found it unnecessary to determine whether it was for any reasons or for a reason relating to a particular employee. There are other authorities in which the word "retrench", or derivatives of it have been considered, such as Lawrence v Clutha Development Pty Ltd, 10 May 1985, unreported in which Keely J concluded that the word "retrenchment" in an award was a reference to the conduct of the employer only though that conclusion plainly turned on the language of the award under consideration. Other authorities supportive of the word "retrench" meaning termination by an employer, though each turns on the context in which it appears are Chantler v Local Government Superannuation Board (1985) 9 IR 284 at 297, Australian Workers Union of NSW Branch v Roads and Traffic Authority of New South Wales (1989) 29 IR 202 at 210 and 215, Preference to Unionists Case (1977) LBC Current Review 218 at 230, Re Montgomery and Commissioner for Superannuation (1985) 3 AAR 67 at 76-78. See also Re Beverage Packers (Australia) Pty Ltd(1990) VR 446 as to a consideration of "redundant". No authority emerged from my research which suggests "retrench" might mean termination other than by the employer. As noted earlier, "retrenchment" is defined in clause (c)(vi) as "the termination of employment of an officer as the result of redundancy" though the definition itself provides no real indication as to whether the termination might be by the employee rather than only by the employer. However not only do the words "retrench" and "retrenchment" connote termination by the employer, several provisions in the Agreement are drafted as if "retrench" or "retrenchment" is a reference to termination by the employer. Clause (f)(i) provides: "Where an officer cannot be redeployed, he/she should be retrenched." Clause (e)(i) imposes on the Bank an obligation to endeavour to redeploy an employee in a redundant position. It is thus reasonably clear that clause (f)(i) is intended to require the Bank to retrench an employee if it has failed to do what clause (f) is directed to achieving, that is, the redeployment of the employee by the Bank. So much is apparent, in my opinion, both from the form and language of sub-clause (f)(i) and its subject matter. Both verbs in the sub-clause are in the passive voice and each clause (in a grammatical sense) the sub-clause within has an unstated object, namely "(by) the Bank". The remainder of clause (f) concerns the manner which retrenchment might occur and each proceeds on the basis that retrenchment is by the Bank. Similarly clause (g), which deals with notice, commences in clause (g)(i) with a reference to "an officer to be retrenched" and it is implicit in that sub-clause that it is retrenchment by the Bank having regard to the use of the passive voice and the unstated object. What may appear to be an exception to the general pattern I am discussing, is found in clause (g)(ii) which speaks of "where an officer elects to terminate his/her employment at the commencement of the period of notice or during the period of notice." This provision, in terms, confers a right on an employee to terminate his or her employment. However the right is a limited one and arises only after notice has been given. Clause (g)(i) requires the Bank to give a specified minimum period of notice of retrenchment which varies according to years of service. Clause (g)(i) requires, in my opinion, the Bank to nominate the date upon which the retrenchment is to take effect, that is, the date upon which the termination of the employment will occur subject to any extension of the period of notice arising from the operation of clause (g)(iii). Thus the right conferred by clause (g)(iii) is not a right to terminate employment which is conferred on the employee but rather a right the employee has to vary the date upon which the termination earlier decided upon by the Bank, will take effect. I should, at this stage, deal with a submission made by the applicants that the making of a written offer in accordance with clause (e)(ix) constitutes conditional notice of retrenchment upon which clause (g)(ii) operates if the condition is subsequently satisfied. The condition is that the Bank and/or the employee find the alternative employment unsuitable. Thus, the argument runs, if an offer of alternative employment is made in accordance with clause (e)(ix) and the employee finds the position unsuitable then the employee is able to exercise the right to terminate in clause (g)(iii). This submission is, in my opinion, barely arguable. Clauses (e) and (g) deal with quite distinct though, it must be accepted, ultimately related matters. The former concerns redeployment and the latter notice of retrenchment. Both in the way the Agreement is structured and conceptually, the two are separated by the decision to retrench and together they constitute a logical sequence of events. There is nothing in the language of either clause to suggest that clause (e)(ix) is intended to serve any purpose other than that which it expressly addresses. Clause (e)(ix) requires that an offer of redeployment, other than to a directly comparable position, both be in writing and contain certain particulars. This is not surprising given that clause (e)(iv)(2) gives an employee two weeks to decide whether or not to accept the offer and, as I shortly discuss, if accepted obliges the employee to work in the position for three months. A further indication that a written offer made under clause (e)(ix) is not conditional notice of retrenchment is found in clause (l). That clause provides that during the period of notice an employee who is to be retrenched is entitled at least to up to six days leave with full pay to seek other employment. It would be a curious result if the written offer was to be treated as conditional notice and the right to the leave to seek other employment could be exercised while both the Bank and the employee were endeavouring to establish the employee in other employment in the Bank to avoid retrenchment and thus avoid the need to find other employment. In my opinion the Agreement, properly construed, does not provide that the offer referred to in clause (e)(ix) is or may be treated as conditional notice for the purposes of clause (g), and subclause (ii) in particular. I return to a consideration of whether the word "retrench" and variants of it in the Agreement refer only to termination by the Bank. I have already considered the ordinary meaning of the word, the defined meaning, and its apparent meaning in the context of clauses (f) and (g). This leads to a consideration of clause (e)(x) which provides that "an officer's services may be terminated....". It is the applicants' contention that this provision entitles the employee, who finds the alternative employment unsuitable, to terminate his or her employment. In my opinion, the clause confers no such right. The second sentence in clause (e)(x) serves two functions. The first is to identify the criterion used to determine that the attempt by the Bank to redeploy the employee by offering alternative employment which is not directly comparable, has failed. The criterion is that either or both the Bank and the employee find that the employment in that position is unsuitable. The second function is to make clear that when, as a result of the failed redeployment, the employee is retrenched, the employee is entitled to severance pay notwithstanding that immediately before the retrenchment, the employee was occupying a position that was not one that involved a position redundancy. In making this last observation I am assuming, as is likely often to be the case, that the alternative employment is in a position that has existed for some time and is unaffected by the change that led to the position redundancy or it is a position that has emerged from the change itself. This second function is to resolve any doubt about whether the employee is still in a redundant situation. Not only is this, in my opinion, the plain purpose of clause (e)(x), the language of the clause is quite equivocal as whether it confers a right of an employee to terminate his or her employment. The compound verb "may be terminated" is in the passive voice and there is not real indication of who it is that may terminate the employment. The construction of the clause advanced by the applicants is at odds with the consistent use elsewhere in the Agreement of the word "retrench" or variants of it which, as I have already discussed, is a reference to termination by the Bank. On this issue I should mention one other matter. During the hearing I admitted into evidence certain documents tendered by the Bank. I published in full my reasons for doing so on 18 December 1995. The principal ground for their tender and acceptance by me was to demonstrate that during the negotiations leading to the making of the Agreement a clause had been proposed by the unions that was not included in the Agreement: see Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1981) 149 CLR 337 at 352-3 per Mason J. It was a clause that would have enabled an employee to elect to be retrenched with a consequential right to severance pay. Three documents only are of any real relevance and even they do not advance the Bank's case significantly. The first was a letter dated 2 October 1990 from the ACTU to the Bank enclosing a document headed "Draft" which was in broad structure, a draft agreement. However a clause headed "Voluntary Redundancy" was, in substance, a narrative of what was proposed by the ACTU, that is an opportunity for an employee to "request(s) to accept redundancy" with a consequential right to a "redundancy package". A similar formulation appears in a draft document sent by one of the Unions, the Australian Bank Employees Union, under cover of a letter dated 12 October 1990 to the Bank. A note of a meeting of 16 October 1990 between union officials, including ACTU representatives, records that, subject to conditions, the "unions were prepared to move away from their earlier position demanding "voluntary" retrenchment rights and would concede to management control of redundancy offers". These documents appear to me to relate to a situation where a number of positions were to become redundant through reorganisation or restructure within a class of positions occupied by more officers than were, at least potentially, to leave the Bank's employ as a consequence of the reorganisation or restructure. In those circumstances the Unions were proposing, and the Bank resisting, the suggestion that the identification of the officers who might leave could, at least initially, be left to the entire class of affected officers by individuals volunteering. This conceptual difference between the Bank and the unions has no relevance to the construction of the Agreement as it might apply in this case. The Bank decided to create a redundancy situation in relation to a position occupied by one person, namely Hawkins. Necessarily the Bank was choosing Hawkins as an employee who might be retrenched if he was not redeployed. No question arises about self selection from a class of potentially affected officers. This extrinsic material could well bear upon the meaning of the expression "an officer whose position is declared redundant" in clause (e)(iii) but the operation and meaning of that provision was not in issue in these proceedings. The case of the applicants was that Hawkins was entitled to terminate, pursuant to clause (e)(x), his employment and preserve a right to severance pay and other benefits under the Agreement. It is not apparent, at this point of my analysis, that clause (e)(x) confers such a right and it appears that the entitlement to severance pay depends upon termination by the employer. However, submissions were made about the operation of other provisions of the Agreement and it is necessary to express a view about those other provisions which confirm, in my opinion, what I view as the proper construction of clause (e)(x). I have already indicated that the likely intended purpose of the Agreement is to give the Bank a measure of flexibility in reorganising its operations and redeploying staff while giving employees a measure of certainty as to what will happen in the event that the position they occupy becomes redundant. It appears to me to be consistent with that intended purpose to treat clause (e) as providing for a process that the Bank may pursue, with the involvement of the employee, only once with a view to redeploying the employee. The language of clause (e) is consistent with that being the effect of the clause. Sub-clauses (e)(i) and (ii) are, in substance, declaratory of a general obligation the Bank has to endeavour to redeploy redundant staff. Sub-clause (e)(iii) is intended to make plain that if the Bank seeks to redeploy an employee to a directly comparable position and the employee does not agree to that course, then no benefits will arise if the employee cannot otherwise be redeployed and is retrenched. It is sub-clause (e)(iv) that first addresses the process of redeployment itself. It enables the Bank to offer the employee directly comparable employment. The offer may be accepted or rejected. Alternatively the employee may be offered other employment though the offer must be in the form prescribed in clause (e)(ix) which I discussed earlier. Clause (e)(iv)(2) gives the employee "at least" two weeks to decide whether to accept the offer of other employment. The form of offer required by clause (e)(ix) and the requirement for a minimum of two weeks in which to consider the offer suggest that the offer and the consideration of it is intended by the Agreement to be of some import and gravity. On one view of the Agreement the rejection of the offer would result in the employee not being redeployed obliging the Bank to retrench the employee in accordance with clause (f)(i). On another view, the rejection of the offer would enable the Bank to make a further offer of other employment and to do so till either an offer was accepted or the Bank was satisfied that no other positions were available to be offered. This second construction is generally consistent with the obligation imposed on the Bank by clause (e)(i). It is, however, not consistent with what I earlier described as the gravity attaching to the consideration of the offer. If multiple offers may be made it is not apparent to me why the offer must be a detailed one in writing and, more importantly, why the employee has to be given a minimum of two weeks to consider whether to accept it. The first approach to the construction of the Agreement is consistent with the gravity attaching to the consideration of the offer because its rejection will lead to retrenchment. The first approach is also not inconsistent with the obligation imposed on the Bank by clause (e)(i) as it would simply mean that the Bank has to cast around as widely as is practicable in selecting a position to be offered and to do so with some care. The first approach is also consistent with the Agreement providing the employee with some measure of certainty concerning the consequences of accepting or rejecting the offer. Rejection leads to retrenchment, acceptance triggers the operation of clause (e)(x). Moreover clauses (e)(vi) and (e)(vii) speak of "an officer who has accepted redeployment". This appears, in context, to be a reference to the acceptance of an offer of the type, and in the manner, referred to in clause (e)(iv). That is, "redeployment" comprehends the acceptance of an offer which would lead to a trial under (e)(x) notwithstanding that the trial will follow the redeployment. This suggests that redeployment has been effected by the Bank making the offer and the employee accepting it, even though the trial may ultimately disclose that the employment was not suitable. This again is consistent with the Agreement contemplating the making of one offer and if it is accepted there has been redeployment, if it is rejected there has been no redeployment. This is also consistent with what I earlier said about the two functions of the second sentence of clause (e)(x). If the offer has been accepted, there has been redeployment even though the trial has not yet occurred. Without the second sentence, the first part of clause (f)(i) could not be satisfied. That is, there would not be a situation where the employee had not been redeployed leading to retrenchment. The second sentence modifies the literal operation of clause (f)(i). If the views I have expressed to this point about the meaning and operation of the Agreement are correct then it is likely that the intended effect of clause (e)(x) is to require the trial to be for three months. If that is so, it is only at the conclusion of the trial that the Bank and the employee can finally form the view that the employment is suitable or not. Put slightly differently, it is only at that time, that a view either of them have about unsuitability, has any operative effect bearing upon a right to severance pay. Given that the Bank, in my view, can make only one offer of alternative employment and the employee is required to give the matter careful thought over a period of at least two weeks, it is unlikely that it was intended that the trial might conclude after a brief period and within the three months. Moreover clause (e)(x) states an employee "will be given a trial period of three months". The language is emphatic and though it is in terms of something akin to a right conferred on the employee, the language suggests the three months is inviolate. If so, the employee is entitled to insist upon a trial of three months and the Bank would not be able to act on the view that the employment was unsuitable till the trial had concluded. It is unlikely that the scope of the right conferred on the employee was intended to be any different to that conferred on the Bank. That is, the right of the employee to act on a view that the employment was unsuitable also arises only after the trial period of three months has concluded. On this issue of the period the trial must take, the applicants sought to tender a Bank document entitled "Guidelines for processing Workplace reviews and the management of redundant staff". It was dated May 1993 and issued by the Industrial Relations Division, Personnel Department Head Office. The section on which the applicants particularly relied was in the following terms: "iv) Where an officer is offered redeployment to a position which is not directly comparable, a period of two weeks shall be permitted for the officer to accept/decline the offer. If accepted, there will be a trial period of three months during which time either the Bank or the officer may terminate employment without loss of entitlement to retrenchment payments (Clause (e)(x))." (emphasis added). The Bank objected to the tender on the basis that the document constituted an approach to the application of the Agreement adopted after the Agreement was made. It was, in character, post contractual conduct relied upon to construe a contract. I indicated I would rule on the tender of the document when determining the application itself and this approach was agreed to by the parties. The Bank sought to tender a document which indicated that the guidelines for applying the Agreement were amended on 10 December 1993 so as to provide that "the officer has the right to trigger retrenchment entitlements after three months of the placement." The emphasised word "after" was a handwritten alteration involving the deletion of the word "within". The Bank's tender was conditional on the admission of the document tendered by the applicants. I reject the tender of both documents. In Seamen's Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444 a Full Court of the Australian Industrial Court rejected the tender of evidence, to support of a particular construction of an award, of the conduct of parties after the award was made relating to the manner in which it was applied. The correctness of that decision has been accepted in a number of cases since: see PREI v Qantas Airways Ltd (1984) 10 IR 1, PKIU v Davies & Ors Ltd (1986) 18 IR 444, Re Security Officers (Waterfront) Award (1988) 26 IR 1, Australian Workers Union, NSW Branch v Allied Constructions Pty Ltd (1988) 27 IR 37, City of Wanneroo v Holmes (1989) 30 IR 362. There may be exceptions to the principle that evidence of subsequent conduct is irrelevant: see Re Security Officers (Waterfront) Award (supra) at 8 but those exceptions have no application here. It may be accepted that more generally the proper approach to the use of evidence of post contractual conduct in construing a contract is not settled: see Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309, Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310 and especially the lengthy consideration of the matter by Santow J in Spunwill Pty Ltd v BAB Pty Ltd (1994) 36 NSWLR 290 in which his Honour concluded that evidence may be led of "mutual subjective intention". That is not the character of the evidence sought to be led by the applicants. If the right of an employee to act on a view that the employment was unsuitable arises only after the trial period of three months has concluded, then it follows that Hawkins had no right in late November 1993 under the Agreement to form a view, that would have any relevant or operative effect on a right to retrenchment payments, that the employment he took up in the trial period commencing 5 October 1993 was unsuitable. I should emphasise that the case of the applicants was based on what was done by Hawkins on 30 November 1993 and not anything done by him in January or February 1994. This is a matter I return to at the conclusion of this judgment. This construction of the Agreement also has the result that it was not open to the Bank to make the offer on 1 December 1993 of what was said to be a directly comparable position which was during the period of the trial. The offer made, even if the position was a directly comparable one, was not one of the type comprehended by (e)(iii) upon which the provisions of that sub-clause operate. This is so for two reasons. The first is that, as I have already indicated, the procedure for redeployment provided in clause (e) confers on the Bank a right to redeploy only once. It may elect to offer a directly comparable position or it may elect to offer a position that is not directly comparable. Having made the offer of a position which was not directly comparable the Bank elected to follow the path created by sub-clauses (e) (iv)(2), (v), (vi), (viii), (ix) and (x). It had, in doing so, redeployed Hawkins. It could not, under the Agreement, retrace the course it had charted for itself and proceed down a different path. The second and related reason was that once the trial period of three months had commenced, the Bank was obliged by clause (e)(x) to allow Hawkins three months to see if the employment he had accepted was suitable. It is inconsistent with the exercise of that right by Hawkins, to treat the Bank as having a right to offer other employment, whether directly comparable or not, during the trial period. Given the view I have taken as to the proper construction of the Agreement, it is unnecessary to deal with two other issues which consumed some time during the trial. However it is appropriate I say something briefly about each. The first concerned a submission by the Bank that Hawkin's conclusion founding his letter of 30 November 1993 that the position of Relationship Executive was unsuitable was a capricious one. It was not, so the submission runs, an opinion of suitability of the type that would permit reliance on the provisions of clause (e)(x) that preserve the right to retrenchment payments. I have already referred to the artificiality that arose from the pleadings which do not put in issue the fact that Hawkins was offered, considered and accepted employment in the manner contemplated by clause (e)(iv)(2), (ix) and (x). The evidence suggests this did not occur. Whether it did or not, in fact, occur might have a bearing on the assessment that might be made of the reasons why Hawkins formed the view that the position of Relationship Executive was unsuitable. If he was never offered the position in the manner contemplated by clause (e)(iv)(2) and (ix), it is difficult to view unduly critically the reasons later given for finding it unsuitable. It would only have been during the trial period that he had any substantial opportunity to express a view about the position of Relationship Executive. However the assumed facts arising from the pleadings must, for present purposes, be accepted. Nonetheless I do not view clause (e)(x) as imposing, by implication, any criteria by reference to which either the Bank or the employee are to assess suitability. I say that because the Agreement confers upon an employee an unqualified right to accept or reject an offer of alternative employment. No doubt an employee would most likely consider matters such as his or her prospects of other employment outside the Bank, whether the position offered was likely to provide sufficiently stimulating and rewarding employment in the medium to longer term, what effect occupying the position would have on prospects of advancement within the Bank and the likely longer term security of the new position. No doubt the status of the new position could have some bearing on not only the perceived attractiveness of the position but also on the matters just mentioned. If, consistent with the terms of the Agreement, matters such as these may be taken into account by an employee when deciding whether to accept the offer of the position then it would be a curious result if the Agreement was not intended to permit the employee to consider similar matters in determining whether the employment was unsuitable. The trial is intended, at least in part, to enable the employee to assess whether the expectations he or she had when accepting the offer have been met. It is plain, in the present case, that Hawkins viewed the position of Relationship Executive as unsuitable for reasons which included the status of the job as he perceived it and the effect accepting it might have on achieving his career objective of becoming the South Australian General Manager of the Bank. The views Hawkins held about the status of the job and the effect on his career of continuing in the position were not shared by other senior Bank employees having regard both to what they said at the time and views proffered in evidence they gave in these proceedings. Nonetheless I am not satisfied, on the evidence, that the views of Hawkins were not held bona fide or were not reasonably open to him. They both concerned matters that have a significant subjective element. Clause (e)(x) operates if the employee "finds the position unsuitable". That is, it operates on the opinion of the employee as to suitability. Such an opinion is necessarily subjective as would the opinion of the Bank formed, as it necessarily would, by other officers of the Bank. In the present case the applicants have proved that, as a matter of fact, Hawkins found the position unsuitable and the "unsuitability" was of the type comprehended by that clause. The second issue concerning the operation of clause (e)(x), was whether the regrading of the position of Relationship Executive to SE on or shortly after 26 November 1993 and the communication of its altered status to Hawkins at the meeting on 1 December 1993 constituted an offer of a directly comparable position. It was not suggested that the communication of its altered status was not an offer of employment to the position. What was in issue was whether it was a directly comparable position. Whether it was involves the proper construction of the definition of "directly comparable position" and its application to the facts. The definition in clause (c)(ii) provides: "(ii) "Directly comparable position" means a position which is at the same classification within the Bank, which does not entail a change of duties significant enough as to be unreasonable in the circumstances of the skills after training in terms of subclause (e)(viii) and abilities of the officer concerned and which is at the same location or at another location which is within reasonable commuting distance." It was common ground that the position of Relationship Executive was not a directly comparable position at least before 26 November 1993 because it was not at the same classification within the Bank as the position formerly held by Hawkins. The contentious question was whether the Relationship Executive position"entail(ed) a change of duties significant enough as to be unreasonable in the circumstances of the skills after training in terms of sub clauses (e)(viii) and abilities of the officer concerned." On this question of whether the position offered to Hawkins was a directly comparable position, evidence was called from two experts and opinions expressed by several of the Bank's other witnesses. I found the evidence of the two experts of minimal assistance as I did the opinions of the Bank's witnesses. This is so for several reasons. The first, and most significant, is that the resolution of whether the position was directly comparable involves the construction of a definition the terms of which are far from clear. Indeed, the definition's obscurity is its hallmark. It is the application of the definition, properly construed, to the facts that answers the question of whether the position was directly comparable. Additionally the expert called by the Bank, Mr Carroll, based his comparison, at least in part, on a job description of the new position that, at least initially in the implementation of the reorganisation, was not viewed as comprehending the position to be occupied by Hawkins. The expert called by the applicants, Mr Morton, had limited knowledge of the banking industry and much of what he said was, in my opinion, self evident in any event. Of critical importance in determining whether the new position was a directly comparable one, is the meaning of the word "unreasonable". Any judgment as to whether the change of duties are significant enough as to be unreasonable would, in my opinion, need to be objective and would involve questions of degree. The language of the definition does not suggest that the unreasonableness of the change in duties turns on the opinion of the employee or the Bank. The word "unreasonable" is found in an adjectival phrase, "significant enough as to be unreasonable", qualifying the nominal phrase "change of duties". The adjectival phrase identifies the extent or magnitude of the change of duties which, if exceeded, renders the new position not directly comparable. Whatever is comprehended by "unreasonable", it requires, as a measure of reasonableness, reference to the existing skills, or future skills after training, and abilities of the officer concerned. It is plain that if the new position requires the performance of a range of new duties and the employee does not possess the skills to discharge those duties, or is unlikely to acquire them after training, then the change of duties is significant enough as to be unreasonable. That is because it is unreasonable to call upon an employee to do work they are unlikely to be able to do with any measure of success. I should add that I do not see any material difference between "skills" and "abilities". Those words appear to be repetitive unless "skills" is intended to describe capacity to do a task that depends on some form of training and "abilities" is intended to describe a more ethereal aspect of a person's capacity to do particular work. However nothing, in my view, turns on any difference in meaning between those words. In the present case the relevant question is how the definition is intended to operate if the change in duties is such that the employee plainly has the skills and ability to perform them as Hawkins conceded in relation to the new position, but the skills required reflect only some of the employee's skills. Two points can be made. Firstly, it is likely that it was contemplated by the parties to the Agreement that the directly comparable position would be at a similar level of responsibility within the Bank and of broadly similar significance to the Bank in terms of the Bank's operations. This may be inferred from the express requirement that the position be at the same classification. The second is that the three elements in the definition, which are classification, change of duties and location, are, in my opinion, designed to establish minimum standards for the benefit of the employee. This may be inferred not only from the subject matter of the elements but the effect of clause (e)(iii) which has been discussed earlier. The employee is deprived of certain benefits under the Agreement if he or she is offered and rejects a directly comparable position. The definition is framed so as to ensure that the loss of those benefits occurs only if the employee is offered a position that he or she might be reasonably expected to accept because is satisfies those standards. Given that the definition serves this purpose, it is probable that the parties intended the word "unreasonable" to comprehend not only situations where the changed duties or a significant number of them could not be performed by the employee either immediately or after training, but also any other unreasonable effect on the employee arising directly from and relating directly to the employees skills and abilities. It would thus operate in situations where the performance of the changed duties would require the use of only a limited range of the employee's skills with the potential that the skills would be lost by the employee over time. That is, the range of his or her skills would diminish over time in the offered position because he or she was no longer called upon to exercise them. The loss of those skills may indirectly bear upon the employee's prospects of promotion in the Bank. There may be other consequences flowing from the offered position requiring the use of a limited range of the employee's skills which are comprehended by the expression "significant enough to be unreasonable" but they are not readily apparent. However given that the offered position needs to be at the same classification to satisfy the definition, I do not consider it is likely that the parties intended unreasonableness to be measured by reference to loss of status arising from the use of only some of the employee's skills. The case advanced by the applicants was that the position offered to Hawkins was, in essence, that of a salesman. The gravamen of the applicants' case on this issue was that the broad managerial role Hawkins performed, and thus the skills he used, would no longer form part of his duties. There was no suggestion that those skills would be lost to him while performing the duties of a Relationship Executive. Rather the limited skills he would use as a salesman had a bearing on his own perception of the status of the position, the possible perception of its status by others within the Bank and how that might affect his prospects of promotion to the position he aspired to occupy within the Bank. It could also have a bearing on the perception of those with whom he might deal outside the Bank. Each of these matters really concern the status of the offered position and they are not, in my opinion, matters to which the relevant part of the definition was directed. Accordingly, the position of Relationship Executive graded at the SE level was a directly comparable position. In the course of these reasons I have identified two bases upon which the application fails. The first is that any entitlement Hawkins derived indirectly from the Agreement to the benefits he claims, arose only if he has been retrenched. That involves termination by the Bank. There was no termination by the Bank and thus he was not retrenched. Secondly, and assuming an employee has a right under clause (e)(x) to terminate his employment, that right arises only when, at the conclusion of the three month trial, the employee has formed the view the alternative employment in unsuitable. The right is conditioned by the formation of that view at that time. Hawkins purported to exercise that right when that condition precedent had not been satisfied. It might be though that the construction of the Agreement I view as the correct one, would unduly restrict the Bank in its attempts to redeploy staff. I have already said the purpose of the Agreement was to confer rights on both the Bank and its employees and to the extent that it does the latter and gives an employee a measure of certainty as to future employment or the payment of severance pay, then it qualifies the former in that the right of the Bank to redeploy is not open ended. It is relatively clear that the opinion that Hawkins had formed, about the new position and which he held when he wrote the letter of 30 November 1993, existed at the time the trial period expired, namely 5 January 1994, and existed at the time he wrote his resignation letter of 4 February 1994. Indeed that letter contains an express complaint about the job. However the applicant's case was conducted on the basis that Hawkins had a right to form an opinion about unsuitability, with a consequential effect on a right to severance pay, during the trial period. In the context of a submission made by senior counsel then appearing for the applicants in an unsuccessful application that certain matters be tried as preliminary matters, the following was said on 14 March 1995: "If I could now indicate, if your Honour pleases, what are the three questions that we would put forward as being a basis which could be a preliminary issue and be determined as a preliminary issue in the trial and depending on the outcome may result in a finality of the trial. The first question is this, assuming an employee has been offered and accepts an alternative position which is not a directly comparable position and further assuming that employee finds the employment unsuitable can the employee terminate his or her employment within the three month period (that is before three months has expired) without loss of entitlement to retrenchment payments pursuant to subclause (e)(x) of the Redundancy Agreement 1990. If I could just stop there a moment. The applicant would submit that the answer to that should be yes, namely we can terminate within a period of three months, we do not have to wait for the three months to end. If we are wrong on that then quite clearly Mr Hawkins has no further claim because it was done within the three month period, that is the end of the case. If the answer is yes then Hawkins' claim is still on foot but then that means that that issue is dealt with so far as the rest of the trial is concerned." (my emphasis) This approach is reflected in a document prepared in August 1995 by other counsel later appearing for the applicants when the application for a preliminary trial was renewed, though again without success. The document was intended to set out issues in the proceedings. It read in part: "ISSUE POTENTIAL BASIS FOR CONSEQUENCES DETERMINATION 3. If no to 2, pursuant to (e)(x), was Hawkins entitled to find the new position unsuitable and terminate his contract of employment at any time within the ensuing three months without prejudice to any entitlements that he might have pursuant to the Agreement. 3.1 This question is to be determined on the construction of the Agreement solely. 3.1 A determination that Hawkins was entitled to so determine is a necessary determination before subsequent issues can be said to arise. 3.2 Comment Refer "the first question" - T130, line 33. Refer Court's comment - T133, line 6. 9. If no to 3 or 7, or if there is an affirmative answer to 8, was the "new position", upgraded to SE classification, a directly comparable position to the 5 October 1993 position? 9.1 This question is to be determined partly on the construction of the Agreement: (refer Respondent's Submission as to construction, para. 36). 9.1 Some scope exists for the restriction of evidence by reason of the interpretation of the definition of "directly comparable position". 9.2 Comment Refer "the third question" - T131, line 14. 9.3 The question would ultimately have to be determined on evidence. 10. If no to 9, has Hawkins opted to terminate pursuant to (e)(x) of the Agreement. 10.1 This question would be determined on evidence." The amended application filed on 19 July 1994 stated as a "claim": "7. That the secondnamed applicant during the course of the three month trial period referred to in Clause e(x) of the said Agreement and more particularly on the 30th day of Novemer [sic] 1993 gave notice to the respondent that he found the said work unsuitable and of his intention to terminate the employment and of his claim to retrenchment payment. 8. That a dispute has arisen as to the right of employees within the said three month period to notify the respondent of the unsuitability of alternative employment provided and to activate their entitlement to retrenchment payment and generally as to the proper interpretation of Clause (e)(x) of the said Agreement and correspondingly Clause 42(d)(x) of the said Award." Plainly the issue in the proceedings was the right of Hawkins to form and communicate the opinion about unsuitability during the trial period of three months and, if there was such a right, whether he was entitled to be paid severance pay. However in final submissions made by counsel for the applicants in February 1996, a submission was made, in response to matters I raised, that suggested the opinion of Hawkins about the unsuitability of that position continued till the time he resigned. It was not a matter pursued in detail and was met by the Bank with a reference to the transcript of 14 March 1995 which I earlier set out. I have, while preparing these reasons, given consideration to calling for further submissions on this question. I did so because Hawkins held the requisite opinion about unsuitability at the end of the trial period. I ultimately decided not to pursue this course for two reasons. The first was that it was not an issue in the proceedings. The second was that, as I construe the Agreement, the entitlement to severance pay only arises if an employee is retrenched, that is, is dismissed by the Bank. While Hawkins may have been able to assert a right to be retrenched and sought to enforce it, having regard to what I earlier said about the effect of clause f(i), he did not do so. He resigned. Accordingly no purpose was to be served by calling upon the parties to address this issue. It might be thought that the construction I view as the correct one operates unfairly on Hawkins. He was a valued employee of long standing and considerable seniority who appears to me to have been a victim of a process designed to create relatively absolute order and symmetry in the structure emerging from the re-organisation of a large and diverse organisation where no absolute order or symmetry was possible. It might be said that humanity was yielding to a science of sorts. In that respect I have considerable sympathy for Hawkins having regard to the position in which he found himself. Nonetheless the Agreement must be applied according to its terms. The Agreement is not easy to construe. I accept that it would not have been easy to draft so as to accommodate all situations that might reasonably have been anticipated at the time let alone to then anticipate all situations to which the Agreement might apply. Nonetheless, its intended operation could have been made more clear if greater attention had been paid to the language used. I conclude by referring to the observations of Wells J in R v Industrial Court of South Australia; Ex Parte General Motors - Holden's Ltd (1983) 35 SASR 161 at 168. I do so not because they reflect in their entirety views I hold or would wish to advocate in the circumstances of this case, at least as forcefully as his Honour did in that matter. However they do provide a context for the concluding remarks in the final sentence which, for my part, I would embrace in these proceedings: "We were informed by counsel that many Awards, more especially Federal Awards, are drafted by advisers who are not lawyers or who, at least, have not received basic training in the art of drafting (such as any person (whether trained in the law or not) would gain from a study of such a little masterpiece as Piesse and Aitken, The Elements of Drafting (6th ed.)). I find this state of affairs, if correctly reported, regrettable. What a draftsman acquires through training, in addition to the virtues of simplicity, precision, and economy, is the power to detect the many pitfalls into which ignorance or carelessness may lead him. The truth is that the disagreement that led to the present proceedings could, and should, have been entirely avoided by the exercise of a little care and foresight in the drafting of the April 1975 variation. It is for that reason that I draw no satisfaction from the conclusion I have reached, any more than I should have drawn satisfaction from it if I had reached the opposite conclusion." I dismiss the application. Schedule 1 COMMONWEALTH BANK OF AUSTRALIA REDUNDANCY REDEPLOYMENT AND RETRENCHMENT AGREEMENT 1990 REDUNDANCY REDEPLOYMENT AND RETRENCHMENT AGREEMENT 1990 The new Redundancy, Redeployment and Retrenchment Agreement 1990 applies to all Commonwealth Bank staff, including former SBV staff. This over-award agreement is based on banking industry standards, while retaining the consultative mechanisms which are a feature of the industrial relationship between the CBOA and the Bank. The first priority of the Agreement is the protection of jobs. Where this is not possible, improved severance payments apply. The key points are highlighted below. Full detail of the Agreement are documented inside. Severance Pay 7 weeks salary for the first year of service (pro-rata for less than one year) 3 weeks salary for each additional completed year of service Maximum severance payment equal to 79 weeks salary (excludes notice period) Salary to be based on actual salary Notice Period 6 weeks notice with an extra 3 weeks notice for members with 25 or more years service. The affected member or the Bank may decide that the notice period be paid out. Concessional Lending Members aged under 55 years at date of retrenchment can continue their concessional SHL, Mastercard/Bankcard for nine months. Members aged 55 years and over are entitled to the usual retired officer benefits. Redeployment Members may be redeployed to a directly comparable position without loss of salary or regular allowances. Members may be offered redeployment to a position at a lower level, but will receive full income maintenance. This Redundancy, Redeployment and Retrenchment Agreement is legally binding on the Commonwealth Bank only where CBOA members are retrenched. Non CBOA members may not be protected. (a) ARRANGEMENT This Agreement is arranged as follows: Subject Matter.................................. Clause Additional Benefits................................ (k) Application........................................ (b) Arrangement........................................ (a) Consultative Processes............................. (d) Definitions........................................ (c) Leave and Expenses to Seek Employment.............. (l) Other Entitlements................................. (j) Moving Household................................... (m) Notice............................................. (g) Redeployment....................................... (e) Selection for Retrenchment......................... (l) Severance Payments................................. (h) (b) APPLICATION This Agreement between Commonwealth Bank of Australia (Bank), Commonwealth Bank Officers' Association and Australian Bank Employees' Union shall apply to members of the Unions employed by the Bank under the Commonwealth Bank of Australia Officers' Award 1990 (Award) and should have effect in situations where the Bank is considering or implementing change that impacts upon working arrangements and could give rise to potential redundancy and/or redeployment situations. A key objective of this Agreement is to minimise the potential for industrial disputation. (c) DEFINITIONS For the purposes of this Agreement: (i) "Allowances" for the purposes of subclause (e) only means payments other than salary (e.g. shift loadings) being received on a regular basis that would normally continue during a period of annual leave for an officer at the relevant time. (ii) "Directly comparable position" means a position which is at the same classification within the Bank, which does not entail a change of duties significant enough as to be unreasonable in the circumstances of the skills after training in terms of subclause (e)(viii) and abilities of the officer concerned and which is at the same location or at another location which is within reasonable commuting distance. (iii) "Redundancy" means a position redundancy - where work (or a major portion of it): (1) is no longer required to be performed; (2) is to be performed at a new location which requires a change in residence of the officer concerned; or (3) results from re-organisation; changed business practice; technological change; downturn in business; a decision to reduce the number of officers; or a general reduction in classification levels or positions. (iv) "Retrenchment" means the termination of employment of an officer as the result of redundancy. (v) "Salary" for the purposes of this Agreement with the single exception of subclause (e), means the sum of annual rate of salary and skill utilisation loading as defined by clauses 8 and 10 of the Award together with payments other than salary (e.g. shift loadings) being received on a regular basis that would normally continue during a period of annual leave for an officer at the relevant time. (Note: Salary in the context of this subclause does not include performance payments to assistant managers and managers in terms of clause 8(d) and 8(f) of the Award.) (vi) "Salary" for the purposes of subclause (e) only means the sum of annual rate of salary and skill utilisation loading as defined by clauses 8 and 10 of the award. (Note: Salary in the context of this subclause does not include performance payments to assistant managers and managers in terms of clauses 8(d) and 8(l) of the Award.) (vii) "Service" means continuous service with the Bank and includes previous continuous service with the State Bank of Victoria (SBV) in respect of an officer employed by the SBV who transferred to the Bank on 1 January 1991. (viii) "Week's Salary" means 50% of an officer's fortnightly salary as calculated by reference to clause 11(b) of the Award and subclause (c)(v) of this Agreement. (d) CONSULTATIVE PROCESSES (i) When the Bank commences to review a work area, practice or function that could give rise to redundancy or redeployment situations, the Bank will inform the Unions and make its representatives available for discussions on the proposals. (ii) Recommendations resulting from the review in terms of subclause (d)(i) and details of any proposed changes to the work area, functions or practices shall be conveyed to the Unions prior to any final decisions being taken. At this stage, the Bank shall supply to the Unions, details of the staffing structure applicable immediately prior to the commencement of the review and an explanation of the expected impact on that structure of the review findings. (iii) The Unions shall have the opportunity to comment on the review recommendations within a reasonable time (generally within two working weeks) of the explanation given in terms of subclause (d)(ii). (iv) Once the initial review findings and any comments by the Unions have been examined by the Bank, the Unions shall be informed of the Bank's final decision, redeployment prospects and the potential for retrenchments in terms of subclauses (e) and (f). (v) The Unions accept the confidentiality of information provided by the Bank in terms of this clause and will not divulge any detail which relates to individual officers until after the Bank has notified the officers concerned. (e) REDEPLOYMENT (i) Where redundancy situations occur, the Bank will make reasonable efforts to redeploy the officers concerned. These efforts will be assisted by taking maximum advantage of normal staff attrition and curtailing recruitment wherever practicable. (ii) All due consideration will be given by the Bank to filling vacant positions with suitably qualified officers whose current positions have been declared redundant. (iii) An officer whose position is declared redundant shall not be entitled to the provisions in subclauses (g), (h), (j), (k), (l), and (m) of this clause if he/she declines an offer of a directly comparable position as defined by subclause (c)(iii). (iv) Where alternative employment within the Bank is offered; (1) to a directly comparable position, the Bank's normal transfer conditions will apply; (2) in all other cases, at least two weeks will be allowed for the officer to decide whether or not to accept the offer. (v) Where an officer is offered a directly comparable position his/her actual salary and allowances shall not be reduced. (vi) If an officer accepts redeployment to an alternative position which is at lower level/classification he/she will retain his/her existing salary/status and associated benefits. (vii) An officer who has accepted redeployment will continue to be paid allowances related to his/her former position which thereafter will be of fixed quantum (i.e. not subject to any further adjustment), less the amount of any allowances related to the position newly occupied, unless/until allowances related to the position newly occupied exceed allowances related to the officer's former position, in which case only those allowances related to the position newly occupied shall be paid. (viii) The Bank will undertake where appropriate to train an officer whose position is declared redundant, in new skills to enable him/her to fill an alternative position. (ix) An offer of redeployment to other than a directly comparable position, shall be in writing with the following information about the proposed job options: (1) location; (2) level classification; (3) salary; (4) principal duties. (x) An officer accepting alternative employment within the Bank, other than to a directly comparable position will be given a trial period of three months in his/her new position. Should either the Bank or the officer find that the employment is unsuitable, the officer's services may be terminated without loss of entitlement to retrenchment payments calculated to the date service actually ends. (f) SELECTION FOR RETRENCHMENT (i) Where an officer cannot be redeployed he/she shall be retrenched. (ii) In a redundancy situation affecting a number of officers engaged in the same work at or about the same classification level and in the same work area, the Bank may call for applicants for retrenchments and determine which officers are to be retrenched. (iii) Nothing in this clause shall prevent the Bank from inviting an officer to apply for retrenchment or an officer applying to be retrenched. (iv) The Bank's right to select officers for retrenchment will be final. (g) NOTICE (i) An officer to be retrenched shall be given the maximum practical forewarning of likely retrenchment and the specific retrenchment date provided that he\she shall be given minimum written notice of retrenchment as follows:- - Officers with less than 25 years service - 6 weeks notice. - Officers with 25 or more years service - 9 weeks notice. (ii) Where an officer elects to terminate his/her employment at the commencement of the period of notice, or during the period of notice; or the Bank so directs, the Bank will pay out the outstanding notice to a maximum of 6 or 9 weeks as appropriate in terms of subclause (g)(i). (iii) The notice period in subclause (g)(i) shall be extended by any period of certified sick leave taken after notice has been given. (iv) The Bank will establish appropriate counselling and information procedures and make these available to retrenched officers without charge. Such procedures shall provide for the officer to be advised of: (1) the sums of money the officer would receive by way of severance payments, in lieu of notice and leave credits; (2) entitlements and options under the relevant superannuation fund; (3) alternative investment strategies which may be provided by way of access to Bank pre-retirement seminars. (h) SEVERANCE PAYMENTS (i) Upon termination through retrenchment, in addition to any payment in lieu of notice as specified in clause (g)(ii), an officer shall be paid a special lump sum severance payment in full settlement of all claims for additional notice, retrenchment pay, etc, calculated as follows: (1) Seven weeks salary for the first full year of service, or pro-rata for officers with less than one full year of service. (2) Three weeks salary for each subsequent year of continuous service. (3) Plus pro-rated payment for each completed month of service in the final year of service. (4) The maximum payment under this subclause will be 79 weeks salary. (ii) (1) The sum payable under subclauses (g)(ii) and (h)(i) shall not exceed the sum of pay that the officer would have earned if employment with the Bank had proceeded to the officer's sixty fifth birthday. (2) An officer who has transferred from full-time to part-time employment will have his/her severance payments for part-time work based on hours being worked as the conclusion of each period of part-time employment. Calculation will be pro-rata on the full-time salary applicable to the level/classification of the ... immediately prior to retrenchment. Severance payments related to periods of full-time employment will be based on the full-time salary applicable to the level/classification of the officer immediately prior to retrenchment. Example 1 • Officer had 10 years part-time service, followed by 7 years full-time service • Number of hours per week worked immediately prior to transfer to full time duties (i.e. end of year 10) - 25. • Level/Classification of officer at retrenchment - AMB. Severance pay is calculated as follows: 10 years = 34 weeks x AMB full x 25 (pro of severance time 38 rata part-time service pay salary hours) Plus... 7 years = 21 weeks = AMB full of severance time full-time service pay salary Example 2 • Officer had 8 years part-time service, followed by 5 years full-time service, followed by 3 years part time service. • Number of hours per week worked immediately prior to transfer to full-time duties (i.e. end year 8) -27. • Number of hours per week worked immediately prior to retrenchment - 18. • Level/classification of officer at retrenchment GC4. Severance pay is calculated as follows: 8 years = 28 weeks x GC4 full x 27 (pro of severance time 38 rata part-time service pay salary hours) Plus... 5 years = 15 weeks x GC4 full of severance time full-time service pay salary Plus... 3 years = 9 weeks x GC4 full x 18 (pro of severance time 38 rata) (j) OTHER ENTITLEMENTS In addition to the severance payments provided by subclause (h), a retrenched officer shall also be paid: (i) untaken annual leave and annual leave loading that would normally be paid in conjunction with such leave; (ii) long service leave in terms of clause 29 of the Award; (iii) superannuation benefits in terms of relevant superannuation fund rules; (k) ADDITIONAL BENEFITS (i) An officer who has attained the age of 55 years as at the date of retrenchment shall be entitled to those continuing benefits applicable to retires officers of the Bank. (ii) An officer who has not attained the age of 55 years as at the date of retrenchment shall be entitled to: (1) retain his/her existing housing loan on concessional staff terms for a period of nine months from the date of retrenchment. At the conclusion of this period, the loan will be refinanced without Bank charges and fees at the Bank's most favourable customer rate for new loans, except where the original concessional loan was approved prior to 7 April 1986 in which case the loan will be regarded as 'regulated'. (2) retain any other loans, including Bankcard, Mastercard and VISA, on concessional staff terms for a period of nine months from the date of retrenchment. (3) exemption from all bank fees and charges for a period of nine months from the date of retrenchment. (l) LEAVE AND EXPENSES TO SEEK EMPLOYMENT An officer who is retrenched shall, during the notice period, be entitled to: (i) reasonable leave with full pay, as agreed between the parties depending on the circumstances including length of service, age and location of the officer, to attend necessary employment interviews. Unless the parties otherwise agree, an officer shall be entitled to up to a total of six days with full pay for such purposes; and (ii) where expenses to attend such interviews are not met by the prospective employer, the officer shall be entitled to reasonable travel and incidental expenses in attending such interviews as agreed between the parties. (m) MOVING HOUSEHOLD Where in the opinion of the parties it is necessary for an officer who is deployed or who is retrenched in terms of this clause to move residence, the following arrangements shall apply in respect of relocation expenses: (i) For an officer redeployed within the Bank, the Bank will meet the cost of expenses, allowances and other benefits on the same basis applicable to Bank initiated transfers. (ii) For an officer taking up a position outside the Bank: (1) the Bank shall make a flat payment equivalent to that applicable under its Family Officer Only Transfer Allowance Policies; (2) the parties may agree on additional reimbursement being made by the Bank depending on the circumstances of the relocation; paying regard to factors such as point of recruitment, location at time of separation from the Bank and major employment areas. (iii) For an officer retrenched from a location other than his/her point of joining the Bank's service, the Bank will meet the cost of relocation expenses on the same basis as would apply to an officer initiated retirement on or after attainment of normal minimum retiring age. (signed) J D MURRAY For and on behalf of Commonwealth Bank of Australia 8/1/91. (signed) K C SCOTT For and on behalf of Commonwealth Bank of Australia 14/1/91 (signed) L N HINGLEY For and on behalf of Australian Bank Employees Union 11/1/91. I certify that this and the preceding eighty (80) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore. Associate: ...................... Dated: ..../..../.... APPEARANCES Counsel for the Applicants: Ms R Layton QC and later Mr P Heywood-Smith and Mr J Rau Solicitor for the Applicants: Johnston Withers Counsel for the Respondent: Mr J Sackar QC and later Mr H Nicholas QC, and Mr J Marshall Solicitor for the Respondent: L E Taylor Dates of Hearing: 13, 14, 15, 16 and 17 March 1995, 20 and 21 March 1995, 14, 16, 17 and 18 August 1995, 29-31 January 1996, 1, 2, 5 and 6 February 1996. Date of Judgment: 15 May 1996 IN THE INDUSTRIAL RELATIONS COURT ) ) OF AUSTRALIA NEW SOUTH WALES ) ) DISTRICT REGISTRY GENERAL ) ) No. SI 114 of 1994 ) DIVISION ) BETWEEN: FINANCE SECTOR UNION AND DAVID NEIL HAWKINS Applicant AND: COMMONWEALTH BANK OF AUSTRALIA Respondent JUDGE: Moore J PLACE: Sydney DATE: 15 May 1996 CORRIGENDUM The following amendments are made to his Honour's judgment of 15 May 1996: 1. On page 43, line 9 delete "(g)(iii)" and insert "(g)(ii)". 2. On page 43, line 23 delee "(g)(iii)" and insert "(g)(ii). Associate: ............................. Date: 23 May 1996