To facilitate Mr MacFie commencing work with the Department in March 1991 it was agreed by the Department and the Association, on a without prejudice basis, that the above outstanding matters would be set aside for the interim and resolutions would be sought on the return to office of the Secretary of the Department in early April 1991.

I was informed that Mr MacFie subsequently met with the Acting Secretary of the Department and that he agreed to commence in the Resources Division (Archaeology) on a "without prejudice basis and confirmation that the issues raised by Mr Smyth would be considered by the Secretary and resolutions sought"5.

Exhibit S4 tendered by Mr Smyth showed that on 30 June 1992 Mr MacFie was advised by the Authority that his employment would be terminated on 18 September 1992.  The termination was to be effected in accordance with subclause 13(e) - Contract of Employment of the Port Arthur Authority Award.  The Authority stated that the reason for the termination was that it "could no longer afford to staff the position of historian thereby rendering your services redundant"6.  The Authority also indicated that it would consider "the final terms of severance"7 on receipt of a claim from the Association.

Further correspondence was exchanged.  Firstly the Association wrote to the Department seeking to compensate Mr MacFie by having his employment extended to 31 December 1992 and that he be provided with retraining;  the ability to apply for vacancies advertised within the Vacancy Control Program;  and the ability to access a redundancy payment under the terms and conditions of the State Government Redundancy Program 1991/92.

Subsequent to this the Authority notified Mr MacFie offering him a "redundancy package"8.  This was rejected by the Association.  Mr Smyth submitted that the Association believed that Mr MacFie should at least have been entitled to the redundancy provisions:

"... that were being afforded to other State servants and had previously in 1991 been afforded to Port Arthur Historic Site employees who were to be made redundant under that particular process." 

Transcript p.9

Mr Smyth also indicated that the Association, in addition to the issue of the level of redundancy payment, contacted the Department regarding future employment prospects for Mr MacFie.  The Department advised that no such employment opportunities existed.

On the 27 August 1992 the Authority reiterated to the Association that it had terminated Mr MacFie because the position of Historian was "made redundant and no alternative position is available"9.  On 14 September 1992 the Authority offered a further 4 weeks pay to Mr MacFie in addition to the redundancy package offered earlier.

Mr Smyth informed the Commission that this revised offer was discussed with Mr MacFie and rejected.  Mr Smyth submitted that it was the view of the Association that Mr MacFie, at the very least, should have received the redundancy arrangements afforded to other state servants.

The sequence of events as they related to Mr MacFie may be summarised as follows:

1.     He was first employed in 1983 on a 12 month contract with the Port Arthur Conservation Project.

2.     In 1984 he was employed as a Site Historian.

3.     In 1987 the Port Arthur Conservation Project was converted to the Port Arthur Historic Site Management Authority which was established by the Port Arthur Historic Site Management Authority Bill, 1987.

4.     In 1991 he was transferred under an "arrangement" to the Department of Parks, Wildlife and Heritage and undertook duties as an Archaeologist.

5.     In June 1992 the Authority notified Mr MacFie that he would be terminated in September 1992.

One further aspect to the submissions of Mr Smyth concerned the employment status of Mr MacFie.  Mr Smyth submitted that Mr MacFie could not be regarded as a temporary employee given the employee definition contained in the Port Arthur Authority Award.  In that regard Mr Smyth acknowledged that the employment status of Mr MacFie was "the real question"10. The definition of "temporary employee" in the award means a person employed who either:

"(a) is engaged to relieve a full-time or part-time employee for specific periods of leave;  or 

(b) is engaged temporarily for specific duties over a fixed time period.  Provided that where those duties have not been completed within the fixed time period a new contract may be offered the employee in order that the specific task may be completed."

Port Arthur Authority Award

Clause 7 - Definitions

Mr Smyth said that Mr MacFie was engaged on a full-time basis.  He submitted that Mr MacFie was "basically given an understanding in Exhibit S1 that he would be an employee of the Port Arthur Historic Site"11.  Mr Smyth also contended that when the Port Arthur Conservation Project was converted to the Authority:

"... staff of the project, as I understand, were given the option of going to the Port Arthur Historic Site Management Authority or returning to the then Department of Lands, Parks and Wildlife, and Mr MacFie along with a number of other members opted to stay with Port Arthur ..." 

Transcript p.16

The option (underlined above) arose, according to Mr Smyth, from the Second Reading of the Port Arthur Historic Site Management Authority Bill.  Mr Smyth referred to the following extract from the Bill:

"Perhaps one of the most important aspects requiring resolution with the establishment of an authority to assume control of the site is the issue of staffing.  Officers presently employed at Port Arthur are either park management staff of the Department of Lands, Parks and Wildlife or former staff of the Port Arthur conservation and restoration project.  Since the demise of the conservation project, the State Government has retained the services of these officers until the management authority is established and a staffing structure determined.  It is clear that the majority of staff presently employed at Port Arthur possess skills that will be required by the management authority.  However a small number will need to be redeployed within the staffing structure of the Department of Lands, Parks and Wildlife.  All staff presently employed at Port Arthur are guaranteed a position either with the authority or with the Department of Lands, Parks and Wildlife." 

Exhibit S12

Mr Willingham appearing for the Authority submitted that there could be no debate about the status of Mr MacFie's employment category.  He said that Mr MacFie was:

"... employed originally by the then Department of National Parks and Wildlife Services by a letter dated 25 September 1984 to the position of Historian, Port Arthur Conservation Project, and that letter commences, Mr Commissioner: 

I am pleased to advise that you have been selected for employment in a temporary capacity in the above position ..." 

Transcript p.19

Mr Willingham indicated that the conditions of employment offered to Mr MacFie specified that his period of employment would be "to 31 December 1985"12.  Mr Willingham submitted that a series of letters to Mr MacFie extended his temporary employment and that this was done in accordance "with what at that time was the proper procedure laid down by the Commissioner for Public Employment;  and simply put, that means that prior to the finalisation of a period of specified temporary employment the employer could either confirm that an employee would leave at the appointed date or could choose to extend the period of temporary employment further, and that is, in fact, what happened in respect of Mr MacFie"13.

Mr Willingham informed the Commission that the extensions to Mr MacFie's employment were fairly regular through 1986 and 1987 primarily because of uncertainty about continuing funding.  He said:

"... in fact, on more than one occasion - at least three, Mr MacFie was in fact given notice of termination of his temporary employment as a direct consequence of funds for the project not being likely to be forthcoming." 

Transcript p.21

The submissions of Mr Willingham were in essence that if it was accepted that Mr MacFie was a temporary employee up to the time he was "formally  appointed under the Port Arthur Authority Award  by  the   Authority itself"14, then only his employment status subsequent to that event needed to be clarified.

That is Mr MacFie was employed by the Authority which was set up under the Port Arthur Historic Site Management Authority Act, 1987.  Accordingly the thrust of Mr Willingham's submissions were that the Tasmanian State Service Act 1984 ceased to have any relevance to Mr MacFie.  Mr Willingham contended that Mr MacFie's employment status was not that of a permanent employee within the meaning of that latter Act.  As a consequence Mr Willingham argued that not a great deal turned on whether Mr MacFie was a temporary or full-time employee within the meaning of the award.

In the circumstances Mr Willingham argued that the issues in question should be confined to the terms contained in the award and the "relevant employing and enabling legislation"15.  Mr Willingham submitted:

"So on that basis, commissioner, we believe and we believe the commission has held in the past, that the first question to be addressed is whether the exercise of the employer' prerogative in relation to the termination of the contract provisions of this award have been properly and lawfully discharged;  and nothing on the evidence before you and, indeed, nothing by way of submission from my colleague Mr Smyth would suggest that the technical act of termination has occurred in anything other than a lawful manner." 

Transcript p.22

Mr Willingham made the point that the Association had not sought the  reinstatement of Mr MacFie but an amount of money by way of a separation payment.  It was submitted by him that:

"We would say that whilst it could not be overlooked entirely, the conditions which may or may not attach to the various redundancy and retrenchment packages established by consecutive state governments over the last 2 or 3 years aren't necessarily germane to this matter." 

Transcript p.23

It was indicated to the Commission by Mr Willingham that the 1990-91 redundancy package offered by the State Government was not agreed by the Tasmanian Trades and Labor Council on behalf of unions generally.  He submitted that the package was processed on the basis of employees seeking voluntary redundancy.  Mr Willingham also informed the Commission that the redundancy package sought by the Association for Mr MacFie included an amount as an inducement to sign up for redundancy which he said was unique to the Department of Construction.  He indicated that it was his understanding that inducements to sign up did not apply elsewhere.

In response to the submissions made by Mr Smyth that the termination payment offers made by the Authority to Mr MacFie were not acceptable, Mr Willingham submitted that there was no obligation for the Authority to do any more than to meet its award obligations.  He stated that Mr MacFie had the best part of 18 months notice that his employment was to end.  In that regard that was an extension of what was originally indicated when he was advised in March 1991 that his employment would finish in March 1992.  It did not in fact end until September 1992.  Mr Willingham contended that Mr MacFie had received far more notice than "any other case"16 of which he was personally aware of;  he was fortunate in that his employment period was able to be extended on several occasions;  he was aware that his employment had a finite life - and that this was properly recorded on each occasion.  Mr Willingham questioned the benefit of an employer doing everything possible to cushion the impact of redundancy by giving as much notice as possible and then still be faced with Commission proceedings.  He indicated the Authority may just as well have given two weeks notice and then had the matter settled in the Commission.  He submitted:

"There has been no benefit to go through this kind of process, notwithstanding the fact that industrial tribunals have instilled in us the need for this sort of procedure, we're still in the same circumstance." 

Transcript p.26

Mr Smyth conceded that the award had not been transgressed.

Mr Smyth however contested the temporary nature of Mr MacFie's employment from September 1984.  He submitted that letters of the same nature as sent to Mr MacFie extending his temporary employment were also sent to all other conservation project employees.  With regard to funding Mr Smyth said "that issue was absolutely crucial to the ongoing employment of those particular individuals"17.  Mr Smyth indicated that at the time two thirds of funding for the conservation project came from the Federal Government and that it was not even certain that funding would be ongoing or slashed in future budgets.

On the issue of temporary employment the following exchange is relevant:

"COMMISSIONER GOZZI:  ... but if all the procedures laid down for ongoing temporary employment were met, and those procedures were as outlined by by the CPE, well it's hard to find that Mr MacFie wasn't indeed a temporary employee. 

MR SMYTH:  On look, there's no question of that, and I'm not going to enter into debate about that.  I think, as Mr Willingham indicated previously, the question of temporary versus permanent, you know, is agreed between the parties, at -

and later:

"... at least on the central issue.  But it can't be dismissed to the extent that the individual didn't have an ongoing expectation of continued employment, given the nature of the actual project.  The project was, by its very nature, somewhat temporary and whilst they were given those letters of temporary extensions to their employment, there was a general view that the individuals down there were - had an expectation for ongoing and future employment at least in some form, and that particularly came to the floor subsequent to the industrial disputation that was experienced down in the project.

So again, I reiterate that I don't think the 3 years that seemed to be dismissed as a party to this particular process by Mr Willingham can be simply dismissed quite as easily as he was indicating it." 

Transcript p.32

Mr Smyth strongly argued that Mr MacFie was not given 18 months notice that his position would be abolished.  Mr Smyth reiterated that there were ongoing discussions between the Association and the Department of Parks, Wildlife and Heritage and that the matter of Mr MacFie's ongoing employment would be set aside on a "without prejudice basis" (Exhibit S3) and that resolutions would be sought.

Mr Smyth said:

"So I don't think you can simply say that 18 months' notice was sufficient to Mr MacFie, given that we never agreed that he was to be terminated in the first place.  Particularly given the fact that the site were employing new staff;  particularly given the fact that the site were contracting out the work of historical duties to other individuals and particularly given the fact that there was no retraining or other options afforded to Mr MacFie to take up other positions within the site that may ... and did become subsequently available." 

Transcript p.33

Mr Smyth submitted that Authority employees had available to them the same 1990-91 redundancy package as offered to other State employees.  He said that no one took up that option and that:

"... at least a precedence that the redundancy arrangements entered into by the Department of Premier and Cabinet ... should be extended to those particular sites." 

Transcript p.33 

Decision

I have carefully summarised the submissions of the parties.  Mr Willingham contended that Mr MacFie was a temporary employee up to the time he was  appointed by the Authority on 1 October 1987.  Subsequent to that Mr MacFie was employed in accordance with the Port Arthur Authority Award and the Port Arthur Historic Site Management Authority Act 1987.  It was submitted for the Authority that it had acted properly in exercising its prerogative to terminate Mr MacFie and that he was given substantial notice that his employment would finish.

Mr Smyth argued that it was not accepted that Mr MacFie could be regarded as a temporary employee up to 1 October 1987 because of the expectation of continued employment.  He submitted that Mr MacFie was given an option, when the Port Arthur Conservation Project became the Authority, of continuing with the then Department of Lands, Parks and Wildlife or staying with the Authority.  In my opinion this does not vitiate the fact that Mr MacFie was a temporary employee prior to 1 October 1987 when he was, as indicated, appointed to the Authority.  To that point in time Mr MacFie had his employment extended, from time to time in accordance with the relevant procedures determined by the Commissioner for Public Employment.

With regard to the proposition advanced by Mr Willingham that the Authority was under no obligation to discharge no more than its award obligations to Mr MacFie, I am of the view that it has been well established that a redundancy payment should be made when an employee is terminated when his or her job has become redundant.  In that regard the Termination Change and Redundancy case decided by the Australian Commission established that a maximum of eight weeks pay should apply, depending on length of service, in addition to Notice.

Whilst this Commission did not follow this prescriptive approach, opting for a case by case review, redundancy payments have been determined to apply over and above award entitlements.  Certainly the period of Notice given to an employee that he or she would be made redundant is an important factor in arriving at an equitable settlement.

I am not prepared to examine this case in isolation of what applies in the public sector generally.  If I were to do so it would be to ignore the reality that Authority employees previously had extended to them the 1990/91 State Government redundancy package as it applied to State servants subject to the Tasmanian State Service Act 1984.

I can find no fault with the treatment of Mr MacFie in the context of it having been made clear to him that his employment would finish.  However it is difficult to understand, particularly as it appears that other employment opportunities did arise, as indicated by Mr Smyth, that he was not able to have his employment continued.

Be that as it may the arguments advanced by Mr Willingham may ordinarily have led me to making a determination which may not have been to the level of benefit afforded to those employees subject to the 1991/92 redundancy "round".  In this case I would consider it extremely unfair to conclude that Mr MacFie should now attract something less.

Accordingly my decision is that Mr MacFie receive by way of a redundancy payment the benefits outlined in the 1991/92 redundancy package as was available to State servants subject to the Tasmanian State Service Act 1984.  The payment is to be calculated from 1 October 1987 to the time he was terminated in September 1992.  In the event that these terms may provide a lesser benefit than what has already been offered by the Authority, the settlement of greater benefit to Mr MacFie is to apply.

I do not consider it necessary to issue an order in this matter.  However I request that the payment now determined be made to Mr MacFie no later than 29 January 1993.

R.K. Gozzi
COMMISSIONER

Appearances:
Mr C. Smyth for The Tasmanian Public Service Association.
Mr C. Willingham for the Minister administering the Tasmanian State Service Act 1984.
Mr J. Milburn for the Port Arthur Historic Site Management Authority.

Date and Place of Hearing:
1992:
Hobart
October 5

1 Exhibit S2
2 Ibid
3 Ibid
4 Ibid
5 Exhibit S3
6 Exhibit S4
7 Exhibit S4
8 Exhibit S6
9  Exhibit S10
10 Transcript p.14
11 Transcript p.15
12 Transcript p.20
13 Ibid
14 Transcript p.21
15 Transcript p.22
16 Transcript p.26
17 Transcript p.31