T10628, T10629, T10632 and T10699
TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984
s.29 applications for hearings of industrial disputes
Australian Education Union, Tasmanian Branch
(T10628 of 2002)
(T10629 of 2002)
(T10632 of 2002)
(T10699 of 2003)
and
The Minister administering the State Service Act 2000
| COMMISSIONER P C SHELLEY |
HOBART, 19 August 2003 |
REASONS FOR DECISION
Industrial dispute - alleged unfair termination of employment - fixed term contracts - State Service Act - whether a reasonable expectation of continuing employment - applications dismissed
[1] On 20 December 2002 and 7 February 2003 the Australian Education Union, Tasmanian Branch ("the Union"), applied to the President, pursuant to section 29(1) of the Industrial Relations Act 1984 ("the Act"), for hearings before a Commissioner in respect of industrial disputes arising out of the alleged unfair dismissals of Amanda Stephenson (T10628), Howard Smith (T10629), Catherine Jaeger (T10632) and Gabrielle Falconer (T10699) by the Minister administering the State Service Act 2000.
[2] The President convened a hearing at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, before myself, to commence on Thursday 27 February 2003 at 10.30 am. At the hearing, Mr C Lane and Mr R Hunt appeared on behalf of the Union, and Mr G Payne and Ms J Ashlin appeared on behalf of the Minister administering the State Service Act 2000 ("the employer"). The applications were dealt with together, and further hearings took place on 20 March and 14 May 2003.
[3] The applications concern the alleged unfair dismissal of four teachers ("the employees") employed to work within the state school system in Tasmania. Each of the employees was employed under contracts purported to be "fixed-term contracts" which were renewed at various times. It is the failure to continue to renew these contracts that has given rise to the claims for unfair dismissal.
[4] The union is seeking an order that the employees be re-employed.
[5] In the case of application T No 10699 concerning Ms Gabrielle Falconer, the application was made out of time.
[6] Section 29 (1B) of the Act provides:
"An application for a hearing before a Commissioner in respect of an industrial dispute relating to termination of employment is to be made within 21 days after the date of the termination or, if the Commissioner considers there to be exceptional circumstances, such further period as the Commissioner considers appropriate."
[7] The date of the termination of Ms Falconer's employment was 20 December 2002. The application was dated 7 February 2003 and was received by the Commission on 11 February 2003, therefore the application was out of time by more than four weeks. It was not put to me that there were exceptional circumstances accounting for the failure to make the application within time.
[8] I dismiss application T10699, on the basis that it was out of time.
Jurisdiction
[9] The terms and conditions of employment of the employees were regulated by Federal awards and agreements certified under provisions of the Workplace Relations Act 1996 ("the Federal Act").
[10] Both parties submitted that the Commission has jurisdiction to hear the dispute pursuant to section 30A of the Industrial Relations Act, which says:
"A person who was employed, or was formerly employed, under a Federal Award and to whom the termination provisions contained in Division 3 of Part V1A of the Commonwealth Act do not apply may apply to the Commission for the hearing of a dispute specified in section 29(1A)(a) or (b)."
[11] Section 170CB of Division 3 of Part VIA of the Federal Act says:
"Subdivision B applies, in so far as it relates to an application to the Commission for relief in relation to the termination of employment of an employee on the ground that that termination was harsh, unjust or unreasonable, if the employee concerned was, before the termination:
(a) a Commonwealth public sector employee, or
(b) a Territory employee; or
(c) a Federal award employee who was employed by a constitutional corporation, or
(d) a Federal award employee who was a waterside worker, maritime employee or flight crew officer, employed in the course of, or in relation to, trade or commerce between Australia and a place outside Australia, between the States, within a Territory, between a State and a Territory, or between 2 Territories."
[12] As the parties were in agreement that the employees were not employed by a constitutional corporation the termination provisions in the Federal Act do not apply, and, therefore, the provisions of Section 30A of the State Act have application.
[13] Mr Lane, for the union, said that, if, as the employer claimed, the employees are employed under the terms of a fixed-term contract, then the jurisdiction of the Commission could be questioned, given the exclusions set out in section 170CC(1) of the Federal Act and the findings of Abey C in matter T9604 of 2001, in the case of Joshua John Strudwick v Irish Murphy's Pty Ltd and the subsequent Appeal to the Full Bench.
[14] I disagree with Mr Lane's comment that, on the basis of those decisions, if it were to be shown that the employees were employed on fixed-term contracts, then they would not have access to this Commission. The circumstances in the present case are different to those in Strudwick, where the employer was a constitutional corporation.
[15] Section 30A clearly provides access to this Commission for a person to whom the termination provisions of the Commonwealth Act do not apply.
[16] Commissioner Abey said, in T9604:
"...it logically follows that an employee of an employer, which is not a constitutional corporation but respondent to a federal award, would have access to the State jurisdiction...."
[17] It makes no difference whether or not the employees were employed on fixed-term contracts. They were federal award employees not employed by a constitutional corporation, and, therefore, pursuant to s.30A, are able to make application to this Commission for the hearing of a dispute specified in s.29(1A)(a) or (b).
[18] Section 29(1) enables an organisation, employer, employee or the Minister to apply to the President for a hearing before a Commissioner in respect of an industrial dispute.
[19] Section 3 defines an industrial dispute as:
"a dispute in relation to an industrial matter..."
[20] "Industrial matter"
"means any matter pertaining to the relations of employers and employees, and, without limiting the generality of the foregoing, includes -
(a)...
(iii) the termination of employment of an employee or former employee
...
but does not include a matter relating to -
...
appointments, or promotions, other than in respect of the qualifications required for advancement;"
[21] Section 30(3) states:
"The employment of an employee who has a reasonable expectation of continuing employment must not be terminated unless there is a valid reason for the termination connected with -
(a) the capacity, performance or conduct of the employee; or
(b) the operational requirements of the employer's business."
[22] The questions therefore are: whether or not the employees had a reasonable expectation of continuing employment, and, if so, was there a valid reason for the termination of their employment? The contracts are one of the factors to be considered in determining these questions.
BACKGROUND
[23] Although the employees have an employment history with the Department of Education that predates 2001, this application is confined to a consideration of the employment patterns during 2001 and 2002.
The Series of Contracts for 2001 and 2002
| Amanda Stephenson | |
| 18 June 2001 to 7 September 2001 | Howrah Primary School |
| Replacing employee on leave | |
| 24 September 2001 to 21 December 2001 | Dodges Ferry Primary School |
| Replacing employee on long service leave | |
| 25 March 2002 to 20 December | Bellerive Primary School |
| Increase in student numbers - creation of vacancy to be filled by permanent teacher | |
| Howard Smith | |
| 18 June 2001 to 21 December 2001 | Penguin High School |
| Replacing employee performing other duties | |
| 11 February 2002 to 31 May 2002 | Mountain Heights School |
| Replacing employee who resigned | |
| 3 June 2002 to 19 December 2002 | Mountain Heights School |
| Continuing to replace the employee who resigned | |
| Catherine Jaeger | |
| 18 June 2001 to 21 December 2001 | Kingston High School |
| Replacing employee who resigned | |
| 12 February 2002 to 20 December 2002 | Kingston High School |
| Continuing to replace the employee who resigned | |
The Terms of the Contracts
Letters of Appointment
[24] An example of a letter of appointment to a fixed-term contract by the Department of Education is one offering a position to Catherine Jaeger in December 2001, signed by the Principal of Kingston High School1. It says, inter alia:
"On behalf of the Department of Education, and acting under a delegation from the Minister administering the State Service Act 2000, I am pleased to appoint you, in accordance with s37(3)(b) of the State Service Act 2000, as a fixed-term employee to the position of teacher, position number 204630, at Kingston High School from 12/02/02 to 20/12/02.
...
You will be employed as a fixed-term teacher. The specific purpose of this employment is to temporarily fill a vacancy created by the retirement of Ann Brown, this vacancy to be filled in due course by a permanent teacher.
Performance Assessment
More than One Term
As this appointment is for a period beyond one school term, I will arrange for an assessment report on your work performance to be completed by the end of the first term of your employment. Further, at the completion of this appointment I will arrange for a final performance assessment to be completed.
The assessment report will be based on the selection criteria which are detailed in the Statement of Duties for a teacher.
Conclusion of Appointment
At the conclusion of this appointment, you will receive a lump sum payment of accrued recreation leave entitlements.
Please note that this period of employment may be brought to an end at any time by the giving of two weeks written notice by either party.
...
Conditions of Employment
You are employed in accordance with, and subject to, the provisions of the State Service Act 2000 which includes the State Service Principles...
General information regarding conditions of employment, particularly information in relation to the Department's policies which affect your employment...are contained in the Human Resources Handbook which is available from the school office or our Website...
Should you have any queries relating to your salary or employment conditions, please contact...
...
Accepting the Appointment
If you wish to accept the appointment as a fixed-term employee, please complete and sign the attached acceptance form...
...
Yours sincerely
David Billing
Principal
Kingston High School."
[25] The (signed) acceptance form reads:
FIXED-TERM APPOINTMENT ACCEPTANCE
I, Cathy Jaeger, hereby accept the fixed-term appointment as teacher, at Kingston High School on a part-time basis, 49 hours per fortnight for the period 12/02/02 to 20/12/02, in accordance with the terms and conditions specified the (sic) fixed-term appointment letter dated 17/12/02.
SIGNATURE DATE
ACCEPTED BY DATE
** Please note that you are unable to commence duty and be paid until this form has been completed and returned.
..."
[26] The same, or similar letters and acceptances were tendered as evidence for all of the employees for appointments in 2001 and 2002.
The Department of Education and the Appointment of Teachers
[27] During the hearing, a considerable amount of detail was presented regarding the systems and methods in place for the appointment of teachers to work in the state school system. The following is a précis of that information.
[28] The Department of Education has approximately 10,000 employees in over 300 locations, which include 220 schools and colleges. The state is divided into a number of education districts based on geography - Arthur, Barrington, Bowen, Derwent, Esk and Hartz.
[29] A school is allocated a quota of "establishment" teacher positions according to a formula relating to student enrolment numbers.
[30] Appointments and promotions are made under the provisions of the State Service Act 2000 (the "State Service Act"). Mr Payne, for the employer, said that permanent teacher appointments are made following advertisement and a merit selection process. The provisions of the State Service Act require that the Department maintain an approved employment register for teachers seeking fixed-term appointments, including graduates. Fixed-term employees are selected from an employment register approved by the State Service Commissioner in accordance with the Commissioner's Direction No. 1. The applicants provide their personal details including their specific areas of expertise and their preferred locations. Schools are required to access the register in the selection and appointment of teachers to fixed-term positions.
[31] Within the Department of Education, the authority to promote or permanently appoint a teacher is delegated to the level of Director (Human Resources Management). Principals and/or Assistant Principals have the authority to appoint fixed-term teachers in schools and colleges, however this is done in consultation with the District Office. The District Office has a prime responsibility for the management and co-ordination of the transfer of permanent teachers.
[32] The transfer policy is subject to conditions set out in a federally registered industrial agreement, which requires that permanent teachers who have completed service in a difficult-to-staff school be given priority for transfer to another geographic location of their own choosing.
[33] The appointment process has to provide coverage for permanent teachers who are temporarily absent from their positions. There could be up to 500 teachers in any one year who are absent from their positions; for example, because of secondment, maternity leave, long service leave, sick leave, leave without pay, workers' compensation absences, and so on. In these situations the Department employs teachers on fixed-term contracts. Mr Payne claimed that the operational requirements of the Department require that fixed-term appointments be made in a variety of other circumstances. These include: where a position held by a permanent teacher becomes vacant and fixed-term appointments are made pending the allocation of a permanent teacher to that position; where there is a fixed-term employee filling a position and it becomes unexpectedly vacant, in which case the position is not advertised immediately, so as not to disturb the school year; when the enrolments at a school increase a fixed-term appointment is made until such time as a permanent teacher is appointed; and where there are special projects for a specified duration.
[34] As a result of a conversion process completed in 2002, the number of fixed-term appointments has reduced from approximately 20 per cent of the total teaching workforce to approximately 13 per cent. That program has now ceased. As at June 2002 the percentage of fixed-term teachers was 13.27 per cent, and in March 2003 the figure was 12.74 per cent. This equates to a full-time equivalent of 626.88 positions. Therefore, the Department requires almost 630 teachers, in addition to those they have permanently employed, in order to meet operational requirements, or, in other words, approximately 13% of the total workforce is made up of teachers required to backfill the position of other teachers who are not in the classroom for a variety of reasons.
[35] Mr Payne said that the State Service Act does not permit the "direct" appointment of permanent teachers, and that persons are permanently appointed following the advertising of a vacant position and a merit selection process, prescribed in Commissioner's Direction No. 1. When there is a vacancy, the position is advertised in the Tasmanian Government Gazette ("the Gazette"), applications are invited and interviews are conducted. A merit selection process takes place and a recommendation is sent to the Director, Human Resources, who has the authority to sign off on the recommendation.
[36] However, it is apparent that, in the following situations, the process as described by the Department, has not been followed.
[37] During the "conversion program" a number of teachers who had served a designated number of years of continuous service under fixed-term contracts were converted to permanent employees, without the advertising and interview process. This conversion process took place between 1999 and December 2002, and applied to teachers who had completed four years of continuous employment in the period up until 31 December 2002. That process was the subject of an agreement between the employer and the Australian Education Union, which has now expired.
[38] Of 51 permanent positions filled at the beginning of 2003, 41 were not advertised in the Gazette, as a result of a graduate scholarship program, approved by the State Service Commissioner, in which 41 graduates of the University of Tasmania were given permanent appointments. There were 126 applicants, and the selection process was based upon exam results, work undertaken during professional experience, and an interview. These positions were not open to other teachers in the Department.
[39] WITNESS EVIDENCE
Howard John Smith
[40] Mr Smith provided a witness statement2 in which he set out his qualifications, employment history and reasons why he believed he had an expectation of ongoing employment. These included what he described as good service [to the Department of Education], satisfactory performance assessment, the flexibility of his teaching areas, his willingness to work anywhere and the numerous professional development activities he had undertaken during his career as a teacher.
[41] He was employed in the State Service, starting at Murray High in 1977. He worked in a number of schools before being made redundant in 1991. He returned to work in the State Service in 1996.
| 1996 | Latrobe High School - whole of year |
| 1997 | No work offered at Latrobe - worked in private schools |
| 1998 | Latrobe High School |
| 1999 | From mid-year Smithton High School |
| 2000 | No work at beginning of year - relief work - then a period at Reece High School |
| 2001 | Part-time Penguin High School for two terms |
| 2002 | Mountain Heights District High School Term 1. Continued into Terms 2 and 3. |
| 2003 | Not offered a position |
[42] During his oral evidence, Mr Smith was shown a document which set out the positions available for teachers at the beginning of 2003, by subjects to be taught, school type, grade levels, regions, and employment type, ie fixed-term and permanent.
[43] Mr Smith's evidence was that there were six positions that he could fill in the Barrington District and a further eight or nine in the Arthur District and that he would certainly have accepted any of those if they had been offered to him.
[44] He said that he had an expectation of continuing employment because:
"...last year I worked the whole year on the West Coast at an isolated school and the year before I worked at Penguin so I had two years of continuous employment and I've shown that I'm keen to work in more or less any area of Tasmania within reason and in any subject field, so for those reasons, and also the fact that I've retrained in certain areas and kept my professional development going last year..."3
[45] When cross-examined, Mr Smith said that he had applied for the position he had previously held at Mountain Heights District High School, which had been advertised in the Gazette. He had applied unsuccessfully for a number of other permanent positions with the Department of Education. Mr Smith said that he understood what permanency was.
[46] He had applied for a number of fixed-term positions and at times he had not been able to obtain any. When he was successful at obtaining fixed-term appointments, he had received letters of appointment.
[47] When he worked at Penguin High School he had understood that he was replacing another employee and had received advice to that effect. He had acknowledged the letter and had said that he understood the terms and conditions of the appointment.
[48] He had spent a whole year at Mountain Heights and had understood, according to his letter of appointment, that he was replacing a teacher who had left at the end of 2001. He had received a letter stating that the appointment was to temporarily fill a vacancy created by the transfer of the incumbent to another role and that the vacancy would be filled in due course by a permanent teacher. Subsequently that appointment was extended for a further term. During that period the position was advertised and filled on a permanent basis. Mr Smith agreed that he understood the reasons why he was appointed.
[49] In re-examination Mr Smith said that his performance had been assessed at the end of 2002 as being satisfactory.
[50] He had applied for about eleven positions at the end of the year. When asked what he thought was likely to happen in 2003 if he did not get one of the permanent jobs he had applied for, Mr Smith said:
"As this happened in the last number of years, in my situation I've been picked up in like a draft earlier in the year, so I do relief until that comes along but I find that invariably the department needs people like me to fill positions either - after Easter usually these occur and so there might be a term here or a term there or a few weeks here or a few weeks there. So I knew - I knew that if I didn't get a permanent position which I was after I would be getting a short term temporary position or so relief so ..."4
Catherine Ann Jaeger
[51] Ms Jaeger's witness statement5 set out her teaching background and qualifications. She commenced teaching with the State Service in 1982 and continued until taking a redundancy at the end of 1993. In September 1997, she re-commenced employment with the Department of Education.
| 1997 | September - Ogilvie High School |
| 1998 | Until April - Ogilvie High School. June-September Rokeby High Third term - overseas travel |
| 1999 | January - July - private school. September - end of year - Ogilvie |
| 2000 | All of year - Ogilvie High school |
| 2001 | Term 1 - Ogilvie High School. Term 2 to end of year Kingston High |
| 2002 | All of year - Kingston High School. |
[52] Ms Jaeger said in her statement that the reasons she had an expectation of continuing employment were that there had been a shortage of Home Economics teachers over recent years and a growing proportion of them are approaching retirement age. She had always received very positive feedback and had been willing to teach outside of her original area of training. She had never received anything other than a satisfactory assessment and had shown her willingness and capacity to be flexible. She would consider any offer made to her.
[53] In oral evidence, Ms Jaeger, when shown the list of positions available in 2003, said that there was one job available that was specifically in her area of training, and that there were several other jobs which she would be prepared to take on which involved subjects that she had already taught. She was not offered the home economics job.
[54] She said that the reasons she expected that she would have continuing employment in 2003 were that she had seventeen years of teaching experience and she had always had satisfactory assessments.
[55] She agreed that she had been offered fixed-term employment for a period of five weeks, after Easter 2003. She also agreed that she had the option not to accept the position.
Amanda Jane Stephenson
[56] In a witness statement provided by Ms Stephenson6, she said that her first appointment with the Department of Education was in 1989. Her statement shows that she has worked at many different schools, in different roles and across a number of grades. These positions have ranged in duration from short-term relief work to a full year. She was continuously employed from second term 2001 until the end of 2002.
[57] In her statement, Ms Stephenson said that she had continually made it known to the Bowen District Office that she was available for part-time work. That office had always received very favourable reports of her performance. She had expected that teachers of her proven dedication, qualifications and experience should be given teaching positions ahead of graduates and new employees. She said that she was prepared to accept any early childhood position in the Bowen and Derwent districts on a part time basis.
[58] In oral evidence, Ms Stephenson said that, of the jobs available at the beginning of 2003, she would have considered anything in early childhood in the Derwent, Bowen and Hartz districts. Of the six fixed-term positions available, she had not been offered any. She would have been prepared to take on any of the jobs available.
[59] At the end of 2002, Ms Stephenson had thought that she would have continuing employment because, she said, she had been working five terms in a row, had fulfilled those roles properly, everyone had been happy with what she had done and she thought that someone with her experience would be guaranteed to get something. She thought the Department would look at people with experience before appointing new people or people straight out of university.
[60] Ms Stephenson said that in 2002 she got above average assessments and the year before she had received an outstanding assessment. These had made her think that she would get a job if there one was available.
[61] When cross-examined, Ms Stephenson said that the reason for the appointment to Howrah Primary School in 2001 had to been to replace someone on long service leave and that had been indicated in her letter of appointment. The same was the case for the appointment to Dodges Ferry Primary School. At Bellerive Primary School, where she worked from March to December 2002, the advice she received was that there was an increase in school numbers, with the position to be filled, in due course, by a permanent teacher. That position has now been filled.
[62] She said that she had been sure that she would be offered something because of her past employment history. She thought that there would always be people going on leave.
[63] She did not think that the last position she held, which was to be filled by a permanent teacher was advertised; if it had been, she would have applied, she said.
SUBMISSIONS
The Applicant's Submissions
[64] Mr Lane, for the union, submitted that the terminations were at the initiative of the employer and that there were no legitimate grounds relating to the employees' behaviour or performance, or to the operational requirements of the employer, to justify the termination of employment. He said that the employer has decided to terminate the employment of the employees, despite the fact that their capacity, their performance and their conduct has not been questioned. There is no valid reason for the dismissals.
[65] Mr Lane said that it is the practice of the employer to employ hundreds of teachers year after year on contract after contract. According to the union, since 1985 the percentage of teachers employed as permanent employees has been markedly reduced.
[66] Every year there is a need for up to 13% of employees to be replacing other employees on leave or secondment. There is the ability for the Department to employ these people as continuing employees without the necessity for the administratively easier fixed-term contracts. There are some 500 teachers, deemed fixed-term employees, who are now on their second, third, or fourth contract or year of employment.
[67] The union submitted that any endeavours by the employer to have us believe that the employees were on stand-alone discrete contracts of employment are a sham. Many hundreds of employees are employed from the beginning of the school year and they then work the full school year. They proceed on recreation leave during the June and September periods of school closure. At the end of the year they receive a lump sum payment that is the same as permanent teachers receive fortnightly for recreation leave. They are then taken on again from the beginning of the next school year.
[68] Mr Lane said that the school or grade level may differ from one year to the next, but that is no different to the situation of approximately 10 per cent of so-called permanent teachers, who are transferred from school to school each year. Moving a teacher from one school to another does not create a new job. A teacher is a teacher. Changes in placement are common, however the teacher is doing the same job under the same statement of duties.
[69] The employees [in the instant case] have not been employed on fixed-term contracts. A fixed-term contract requires the precise specification of an expiry date. At first glance, the letters of appointment seem to comply with that, but a contract that allows either party to the contract to terminate the contract with notice at any time is not a contract for a specified period of time. Authorities for this include Cooper v Darwin Rugby League Incorporated (1994) 571 R 238 and Anderson v Umbakumba Community Council (1994) 126 ALR 121. Those two cases make the point that where either party to the contract can terminate that contract with notice at any time then they are not contracts for a specified period of time.
[70] The letters of appointment, for example, Catherine Jaeger's7, say:
"Please note that this period of employment may be brought to an end at any time by the giving of two (2) weeks written notice by either party."
[71] The Full Bench of the Australian Industrial Relations Commission in National Tertiary Education Union v Australian Higher Education Industrial Association (1998) re AILR 3-785 describes four types of employment: full-time, part-time, fixed-term and casual. As the employees in this case are not fixed term or casual, then they should be only be subject to termination of employment based on valid reasons, Mr Lane said.
[72] Employees on "fixed-term" contracts, like all other employees, are given an employee number when first employed which they retain, despite moving from contract to contract. They accumulate sick leave and long service leave for each year that they are continuously employed.
[73] In the case of D Scally and Ors v Board of Management of Sir Charles Gairdner Hospital W226, W12268 & W12398 of 1995, the Industrial Relations Court of Australia said:
"Evidence that the employees annual leave and sick leave entitlement accumulated from one contract to another was consistent with a continuous period of employment. Each applicant had a genuine expectation of further employment."
[74] The Full Bench of the Industrial Relations Court of Australia in Fisher v Edith Cowan University and Dadey v Edith Cowan University (1997) 41 AILR 3-540 ("Fisher") addressed the issue of evading responsibilities. The Full Bench referred to the International Labour Organisation Termination of Employment Recommendation 1982.
[75] 3(1) of the Recommendations says that:
"Adequate safeguards should be provided against recourse to contracts of employment for a specified period of time the aim of which is to avoid the protection resulting from the Termination of Employment Convention, 1982, and this Recommendation."
[76] Mr Lane said that the employment relationship, in the case of the employees, should be seen as being of indeterminate duration because they have been renewed on one or more occasions.
[77] In the case of Rosemarie D'Lima v Board of Management, Princess Margaret Hospital for Children 1995 AILR 3 (173), the Industrial Relations Court of Australia held:
"I likewise reject the submission of Mr Hooker that the dismissal of Ms D'Lima was not a termination of employment at the initiative of the employer. The fact of the matter was that Ms D'Lima was continuously employed from 18 June 1993 to 11 December 1994 on which latter date her employment was terminated by the hospital. The practice of signing of further contracts for alleged periods of temporary employment appears to have been one of mere administrative convenience and cannot compel the Court to ignore the weight of strong countervailing factors indicating a continuous employment relationship."
[78] In the union's submission, the renewal of the contracts year after year is for the mere administrative convenience of the employer. In Fisher, referred to earlier, the Court commented on the obligation to provide safeguards against the misuse of so-called fixed-term contracts:
"Whilst on their face contracts of employment for a specified period of time may provide for consensual termination of the employment relationship by the effluxion of the period specified in the employment contract, that termination may, in certain circumstances, be a termination at the initiative of the employer. For example, if an employer arranged for an employee to render service under consecutive contracts of employment for specified periods of short duration, where the nature of the employment is appropriate for a contract of indeterminate duration, and the employee had no say in the terms of the agreement, it may be said that the contract served the purpose of the employer by providing additional control over the employee. In such circumstances if the employment relationship is terminated by the refusal of the employer to `roll-over' the employment contract, the termination may be seen as part and parcel of an initiative taken by the employer at the commencement of the contract of employment to reserve that power."
[79] Mr Lane said that the contracts are for the employer's convenience. At no stage have the interests of the employees been taken into account.
[80] The employer has taken on 174 new teachers in all geographic locations at all grade levels and in all subject areas. Of the 174 new teachers appointed this year, 123 of them were fixed-term contracts, which means that 123 of the positions were never advertised, and therefore the employees did not have an opportunity to express an interest, let alone to apply for the positions. Of the permanent positions, 40 of them were given to university graduates, therefore, there were only 11 possible positions which would have been advertised and for which these four employees could have applied.
[81] Mr Lane said that the employer's suggestion that any order that the Commission makes cannot contravene the State Service Act, is a nonsense.
[82] Section 3(5) of the State Service Act says that where there is an inconsistency between the State Service Act and any other law in force, other than an award, that law is to be read subject to the provisions of the State Service Act. Section 3(1) of that Act defines award as meaning an award, determination, decision, or agreement in force under either the Federal or the State industrial relations legislation. An order, or agreement, or award comes into force when the order is made. When it is in force it may contradict the State Service Act. When the new State Service Act was enacted in 2000 it was very clearly the intent of Parliament that state employees would be provided with the protection of this Commission.
[83] Section 50(3) of the State Service Act says that an employee is not entitled to make application for a review by the State Service Commissioner in respect of termination of the employee's employment. There is a note to say that such disputes are to be dealt with by the appropriate industrial tribunal. The employer is now suggesting that, on the one hand, the Parliament gave the power to this Commission to deal with termination of employment matters to do with State employees, and yet tied the Commission's hands behind its back so that it could not take action which it deems to be appropriate under all the circumstances.
[84] Mr Lane said that the employer had claimed that the reason that the employees did not get positions was because the 174 new employees were selected on merit. The employer said that this was a valid reason for the terminations. The State Service Commissioner's Directions8,at page 6, has a note on "merit". It says:
"...a decision relating to appointment or promotion is based on merit if:
an assessment is made of the relative suitability of the candidates for the duties; and
the assessment is based on the relationship between the candidates' work-related qualities and the work-related qualities required for the duties; and
the assessment focuses on the relative capacity of the candidates to achieve outcomes related to the duties..."
[85] In Mr Lane's submission, looking up the employment register does not allow for the relative suitability of candidates to be assessed. The 174 new employees have never performed work-related activities. How do we know whether the new employees have the capacity to achieve outcomes related to their duties? The employees in question have shown that capacity.
[86] The evidence was that the positions filled by the employees were not discrete and did not stand-alone. Entitlements continued to accrue as their service continued. In the case of annual leave, when it was known that an employee was to continue at another school, arrangements were made to carry the annual leave over. This is demonstrated in Exhibit R1, Howard Smith's record of employment, and Exhibit R9, an affidavit setting out the employee's recreation leave details. These show that Howard Smith was not paid out his recreation leave at the end of his first contract at Mountain Heights. Sick leave was carried over; the employees accumulate sick leave in the same way as do permanent employees.
[87] The employer had said that the employees were terminated because the reason for their appointment no longer exists. The Department mixes up appointment, employment and placement, Mr Lane said. The reason for a placement at a particular school may cease when somebody comes back from leave, but there is still a reason for employment, because there are up to 13 per cent of the employees of the Department on leave at any one time and there is a need to continuously employ people to replace them.
[88] The union submitted that the employees should be re-employed. A teacher is a teacher. They have the same position descriptions, regardless of where they teach or what they teach. The union is not seeking that the employees be returned to a specific place, but is seeking ongoing employment as is their entitlement.
[89] The fact that the State Service Act defines the contracts as fixed-term contracts does not make them so. If an Act said that something black was white, that would not make it so. To refer to the contracts as fixed-term contracts is in fact not correct. The fact that either party is able to terminate the contract by the giving of two weeks' notice means that they do not have the status of fixed-term contracts.
[90] They were not employed according to section 37 of the State Service Act, which says the appointment of a person as an employee is to be as a permanent employee or for a specified term or for the duration of a specified task. If they are not employed for a specified term or a specified task, then they must be permanent under the State Service Act.
[91] The Industrial Relations Act at section 20(1) says:
"In the exercise of its jurisdiction under this Act, the Commission shall act according to equity, good conscience and the merits of the case without regard to technicalities or legal forms;"
[92] Mr Lane said that the State Service Act was being used in a way which is simply for administrative convenience; it is incumbent upon the Commission to take steps to ensure that fairness and equity is taken into account. The Commission has the right to rectify the wrong and ensure that the State Service Act is not used to employ people year after year without security of employment. This is aimed at ensuring that the employer retains absolute power over the employees, and in that regard, is a misuse of the power given to it under the State Service Act.
The Respondent's Submissions
[93] Mr Payne, for the employer, submitted that the processes associated with each of the fixed-term appointments did not in any way provide the employees with a reasonable expectation of continuing employment.
[94] Mr Payne said that the employees were employed as fixed-term employees according to the provisions of the State Service Act, which defines fixed-term employees as:
"a person appointed for a specified term or for the duration of a specified task as referred to in section 37(3)(b)."
[95] Under the terms of the State Service Act, there are two main modes of employment, permanent and fixed-term appointments.
[96] Section 45 of the State Service Act deals with the termination of fixed-term employees, and it says:
"The Minister may at any time, by notice in writing, terminate the employment of a fixed-term employee in accordance with the terms and conditions under which the employee is appointed."
[97] Mr Payne said that each of the employees received letters of appointment setting out the specific location of the position, the start and finish date and the reason for the fixed-term appointment. They were also advised that at the conclusion of the fixed-term contract they would receive a lump sum payment for accrued recreation leave. Further, they were advised that the employment may be brought to an end by the giving of two week's notice by either party. In addition, the employees filled out an acceptance form, accepting the terms and conditions of the fixed-term employment. On the evidence, the employees did not receive any formal or informal advice that they could expect ongoing employment with the Department of Education.
[98] Mr Payne submitted that whilst the applications before the Commission had been joined, each application must stand alone in terms of the evidence pertaining to each case.
[99] Upon the cessation of each of the contracts during 2001 and 2002 all of the employees received pro rata payment of recreation leave. Each fixed-term appointment stood alone. Each appointment was discrete and recognised as such by the issue of a new letter for the next appointment. This was not an attempt to avoid future employment commitment, Mr Payne submitted, but represented proper employment practice.
[100] As at December 2002 each fixed term appointment came to an end for the reasons set out in the letters of appointment. The positions held by Ms Jaeger and Mr Smith were advertised during Term 3 of 2002 and the successful applicants took up the positions on a permanent basis from February 2003. The position occupied by Ms Stephenson was filled by the assignment of a permanent teacher from the commencement of the 2003 school year. The reasons for the appointments had come to an end and there was no further basis upon which the employee could continue.
[101] In her evidence, Ms Jaeger referred to her various broken employment periods in the state schools since 1982. Ms Jaeger clearly understood the nature and the extent of her fixed-term employment and therefore could not have had a reasonable expectation of continuing employment. This was shown by her evidence where she indicated that she was currently considering an offer of fixed-term employment for five weeks. She clearly recognised that she was not obliged to accept the position.
[102] Mr Payne said that the fact that a person was on the employment register did not mean that they would be made an offer, nor does it mean that the person must accept an offer. If a teacher is on the register, then they are a prospective fixed-term employee. The register is effectively an expression of interest, which does not obligate either party.
[103] Mr Smith's evidence referred to his broken periods of employment in state schools since 1997. The position last occupied by Mr Smith on a fixed-term basis was permanently filled during the latter part of 2002. The evidence showed that Mr Smith was an unsuccessful applicant for that position and that during 2002 he had unsuccessfully applied for several other permanent teaching positions.
[104] Mr Payne submitted that Mr Smith, as a former permanent employee of the Department of Education, clearly recognises that the nature of temporary or fixed-term employment provides no guarantee or expectation of continuing employment.
[105] Ms Stephenson's statement showed various broken periods of employment with the Department of Education since 1990. The period under review in this claim shows that she was paid pro rata recreation leave at the end of her appointment to Dodges Ferry Primary School at the finish of Term 3 in 2001. She did not receive another fixed-term appointment until 25 March 2002. In her evidence, she clearly recognised that being employed on a fixed-term or temporary basis was not easy in terms of working on an ongoing basis. She said she continually informed Bowen District Office of her availability and that she "resorted to nagging district office merely to get a new temporary contract."
[106] In Mr Payne's submission, on the basis of Ms Stephenson's previous range of appointments with the Department of Education, her expectation of ongoing employment cannot be justified.
[107] The union has argued, said Mr Payne, that the Department of Education has an obligation to fill fixed-term vacancies with these applicants, as opposed to meeting the statutory obligation to fill positions on merit. The union's argument is not based on whether these employees have greater merit than others; they say that, by virtue of the employee's previous experience with the Department, there is an obligation to extend preferential treatment to the those former fixed-term employees, irrespective of their skill level and the operational requirements of the Department. The Department has an obligation to consider all eligible staff registered for fixed-term appointment on an equitable and fair basis, including these applicants. The final decision about who is offered employment is based on merit and the operational requirements of the Department.
[108] Mr Payne submitted that the former employees the subject of this application were engaged in accordance with the State Service Act. They were fixed-term employees under the provisions of that Act. The State Service Act provides for the termination of employment of fixed-term employees. Any decision or order of the Commission must consider the statutory provisions. The Industrial Relations Act excludes appointments and promotions as industrial matters. Regard must also be had for section 3(5) of the State Service Act, which says:
"If there is an inconsistency between a provision of this Act and any other law in force in this State, other than an award, being a law that makes specific provision with respect to the appointment of a person to the State Service or the promotion of a permanent employee, an employee included in a class of employees or any matter relating to the employment of an employee, the provision of that law is to be read subject to the provision of this Act."
[109] The definition of "award" under State Service Act means:
"an award, determination, decision, order or agreement in force under the Workplace Relations Act 1996 of the Commonwealth, the Industrial Relations Act 1984 or any other Act of the Commonwealth or of Tasmania which provides for the determination of conditions of employment of a person:"
[110] A Federal award exists that covered the employees. Mr Payne said that that award does not have provisions that relate to the appointment of a person into the State service. Further, there is no determination, decision, order or agreement in force in relation to the matters currently before the Commission. Thus, if the Commission were to issue an order in respect of the current matter, regard should be had to section 31(2)(a) of the Industrial Relations Act, which states:
"A Commission shall not make an order under this section that is inconsistent with the provisions of any Act dealing with the same matter."
[111] Mr Payne said that the State Service Act has primacy in relation to the appointment and termination of fixed-term employees.
The respondent tendered a decision of the High Court in the case of Renault v Zhang9,in which, Mr Payne said, the Court found that there is a duty to obey legislative texts, expressed at paragraphs 143 to 147 of that decision:
"Duty to obey legislative texts: In the joint reasons in this appeal the opinion has been expressed that, notwithstanding the language of ...the meaning of the applicable rule was to be found in "authoritative decisions...construing" the "judge-made doctrine". ...The joint reasons state that the Rules now in place do not "displace and provide a substitute for that doctrine."
With all respect, I regard this view as fundamentally mistaken. I dissent from the notion that judges are authorised to adhere to their "doctrine" where a superior law making power, whether in the form of the Constitution or legislation or rules validly made under legislation, has entered the field. In such cases "judge-made doctrine" yields. It then becomes impermissible for judges to adhere to their "doctrine" if the written law is in any way different. Their duty is to obey the written law."
[112] Mr Payne said that the High Court judgment reiterates the superior authority of legislation. In applying common law, or industrial principles, the Tribunal must be mindful of the relevant statute, which, in this case, is the State Service Act.
[113] If the Commission were to grant the Orders sought by the Union, re-employment, then the Commission would be conferring the status of permanency on them, and only the State Service Commissioner is able to make an individual appointment. The Commission would be crossing the line into the domain of the State Service Act and the powers under that Act.
FINDINGS
[114] The question to be determined is whether the employees had a reasonable expectation of continuing employment. If there was such an expectation, reasonably held, then the next question becomes: was there a valid reason for the termination of employment?
[115] I deal firstly with the issue of the "fixed-term contracts". I agree with the union that it has been established in a number of decided cases, including in this Commission, that a contract that contains a provision allowing either party to terminate the contract by the giving of notice, is not a contract for a fixed term. Rather, it is a contract for an indeterminate period, with a date beyond which the contract will not continue.
[116] The State Service Act defines a "fixed-term employee" as a person appointed for a specified period or task. Section 45 of that Act allows the Minister at any time, by notice in writing, to terminate the employment of a fixed-term employee in accordance with the terms and conditions under which the employee is appointed. The letters of appointment refer to the ability of either party to bring the contract of employment to an end by the giving of two weeks' written notice. The fact that the State Service Act allows for the appointment of employees for a specified period or task through an instrument of appointment that provides for the termination of the contract by the giving of notice at any time during the term of the contract, does not alter the plain fact that if the contract can be ended at any time then its term of operation is not fixed.
[117] However, in this jurisdiction the critical question is not whether the employees were employed on fixed-term contracts, but whether they had a reasonable expectation of continuing employment. If the contract were terminated by the employer before the expiration date and there was not a valid reason for doing so relating to performance, conduct or operational requirements, then that would constitute an unfair dismissal. That is not the case in the matters before me. None of the contracts came to an end before their nominated expiry date.
[118] If a contract does run until the expiry date and it can be demonstrated that an employee had a reasonable expectation that the contract would be renewed, and it was not, then that could, depending upon the circumstances of the case, be a termination at the initiative of the employer and might be found to be a case of unfair dismissal. That is the claim in the instant case.
[119] I do not agree with the employer's submission that the State Service Act has primacy in relation to the termination of employment of fixed-term employees. The State Service Act specifically does not deal with disputes in relation to termination of employment.
[120] Employees employed under the terms of the State Service Act are able to make application to the Commission in relation to an industrial dispute. All employees of the state service, whether permanent or fixed-term, are able, under the terms of the State Service Act, to be given notice terminating their employment. There must, however, be a valid reason for the termination. If there is not, then the termination would be unfair. Section 50(3) of that Act specifically precludes an employee from seeking a review by the State Service Commissioner of a termination of employment decision, and notes that disputes in relation to the decision to terminate employment are to be dealt with by the appropriate industrial tribunal. The State Service Act does not differentiate between permanent and fixed-term employees in this regard. It refers to "employees" and the definition of "employees" in section 3 of that Act says:
""employee" means a permanent employee or a fixed-term employee"
[121] I find that this Commission has the jurisdiction to hear a dispute relating to the termination of the employment of an employee appointed to the state service as a fixed-term employee.
[122] The employer argued that Tribunals have a duty to obey legislative texts and cited the High Court case of Renault v Zhang in support of that proposition, stating that when applying the common law and industrial principles, the Tribunal must be mindful of the relevant statute, in this case, the State Service Act. Whilst I have already found that the State Service Act does not have primacy in relation to disputes concerning the termination of employment, I point out that the passage the employer quoted from in Renault v Chang was actually the dissenting view of Kirby J, in which he dissented from the majority judgment comprising Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. Therefore, the views quoted did not represent, as the employer put it, the judgment of the High Court of Australia, but rather, a view dissenting from the judgment of the majority of the Court. That case considered whether the Australian common law should recognise the lex loci delicti ("the law of the place of the tort of wrong") as the substantive law to be applied in actions for torts committed in a foreign law area.
[123] Whilst I do not need to take this point further, having already found that the Industrial Relations Act 1984, not the State Service Act, has application in the case of disputes in relation to termination of employment, I observe that under the principle of parliamentary sovereignty, statute law prevails and can override the common law and judge-made law, but, generally, a statute will not be taken to have repealed the common law unless it explicitly or implicitly shows such an intention. In the case of the Industrial Relations Act 1984, section 31(2)(a) states that a Commissioner shall not make an order in settlement of a dispute:
"that is inconsistent with the provisions of any Act dealing with the same subject-matter".
[124] If the union were to succeed in making out the claim for unfair dismissal, then, when making an order in settlement of the dispute, this Commission would need to consider whether any such order was inconsistent with the provisions of the State Service Act, but that does not prevent this Commission from hearing and determining the matter.
[125] The employer maintains that the employees can have had no reasonable expectation of continuing employment, for the reason that were employed, and knew that they were employed, according to the fixed-term contract provisions of the State Service Act and the State Service Commissioner's Direction No. 1, which is to be read as though it were the State Service Act.
[126] The State Service Act 2000 at Part 7 - State Service Employees - provides for the appointment, promotion, transfer and termination of state service employees. The Department of Education is an agency to which the Act applies.
[127] Section 7 sets out what are referred to as "State Service Principles", relevantly:
"(1) (b) the State Service is a public service in which employment decisions are based on merit;
...
(2) For the purposes of subsection (1)(b), a decision relating to appointment or promotion is based on merit if:
(a) an assessment is made of the relative suitability of the candidates for the duties; and
(b) the assessment is based on the relationship between the candidates' work-related qualities and the work-related qualities genuinely required for the duties; and
(c) the assessment focuses on the relative capacity of the candidates to achieve outcomes related to the duties; and
(d) the assessment is the primary consideration in making the decision."
[128] At section 37 the State Service Act provides that:
"(1) The appointment of a person as an employee or the promotion of a permanent employee -
(a) is to be based on merit and made in accordance with the Commissioner's Directions; and
(b) is to be made by the Minister on behalf of the Crown.
(2) The Minister may delegate the Minister's power of appointment of persons or promotion of permanent employees.
(3) The appointment of a person as an employee is to be -
(a) as a permanent employee; or
(b) for a specified term or for the duration of a specified task."
[129] The "Commissioner" referred to in the State Service Act is the State Service Commissioner appointed under the terms of that Act. "Commissioner's Directions" are directions issued by the State Service Commissioner under section 20, which:
"relate to any of the Commissioner's functions under this Act and which have effect according to their tenor unless they are inconsistent with or repugnant to other provisions of this Act."
[130] And, at section 3(3) of the State Service Act:
"In this Act, the term "this Act", except in sections 14 and 20, includes Ministerial Directions and Commissioner's Directions issued under this Act".
[131] Commissioner's Direction No. 1 of 2001, which has an operative date of 1 May 2001, addresses inter alia "fixed-term" contracts. As can be seen by the dates of the contracts of the employees, Direction No. 1 had application at the relevant times.
[132] In fact, as the evidence shows, in some cases the employees were not employed in accordance with those provisions.
[133] Section 7.2 of the Commissioner's Directions says:
"It is important that a fixed-term employee is not given expectations of ongoing employment and that separate fixed-term employment contracts are used for each instance of fixed-term employment. Extensions or "rolling over" of fixed-term employment contracts are not permissible other than as specified in section 7.4 of this Direction."
[134] Section 7.4 says:
"Where it is apparent that a fixed term appointment is required to be extended...a Head of Agency may make one extension to an initial fixed-term appointment without advertising in the Gazette provided that the period of such an extension is not greater than the original period of appointment and the reasons for the fixed-term appointment have not changed."
[135] There was no evidence that any of the "fixed-term" positions held by the employees were advertised. On the contrary, it seems that the employees were all selected from the register. The evidence was that Howard Smith was appointed to Mountain Heights School from 11 February 2002 to 31 May 2002, a period of sixteen weeks. This was then extended and another contract was issued from 3 June 2002 to December 2002, a period of 30 weeks. The extension to the contract was obviously for a greater period of time than the original period of appointment.
[136] Similarly, Catherine Jaeger's first contract at Kingston High School was from 18 June 2001 to 21 December 2001, which was then extended with another appointment from 12 February 2002 to 20 December 2002, approximately twice the length of the first appointment.
[137] An argument that because new paper contracts were issued the appointments were not extended or "rolled over" would fail on the facts, which are that the employees continued to be employed in the same positions under the same conditions of employment for a period of time more than twice as long as the initial period of appointment. Pro rata entitlement to recreation leave payment was not paid out at the finish of the first contract in the case of Howard Smith. Clearly, the contract, in this case, was simply "rolled-over".
[138] Section 7.1(b) of the Directions says that fixed-term employment may be required for meeting work peaks associated with the activities of an Agency.
"Fixed-term employment for this purpose is not to exceed a period of six months unless exceptional circumstances exist."
[139] In the case of Amanda Stephenson, she was employed on a fixed-term contract at Bellerive Primary School from 25 March 2002 to 20 December 2002, because of an increase in student numbers. An increase in student numbers in a Department of Education is surely a "work peak". The duration of the appointment was for 39 weeks, a period of nearly 10 months, 4 months in excess of the maximum period stipulated in the Commissioner's Directions. There was nothing to indicate that these were "exceptional circumstances", indeed, the employer specifically cited the circumstance of an increase in student numbers as being one in which fixed-term contract employees were appointed until such time as a permanent teacher is appointed.
[140] Section 7.3 of the Commissioner's Directions says that an employee may only be recruited from an employment register for a maximum period of 12 months in any one instance. Catherine Jaeger was employed in the same position at Kingston High School from 18 June 2001 until 20 December 2002, replacing an employee who had resigned. It is clear that this employee was recruited from an employment register for eighteen months, notwithstanding that it was on two different contracts. The fact is that she worked in the same position, excepting for school vacation periods, for more than twelve months.
[141] The employer's submission to the effect that the employees were appointed to fixed-term appointments under the terms of the State Service Act does not stand up. The Commissioner's Directions are to be read as though they were the Act, and the circumstances of the fixed-term appointments, in a number of instances, are in breach of those Directions. It is fundamentally unfair for the employer to be in breach of its own employment policies and conditions and then to rely on them to support arguments as to the employment status of its employees. However, the fact that the employees were not appointed according to the terms of the Directions is not determinative, in itself, of the questions to be answered, it simply means that the employer is unable to rely upon its own flawed appointment processes as being determinative of a fixed-term employment status.
[142] The employer also argued that the employees are unable to be considered permanent employees because they have not been subject to a merit selection process, as is the case with employees permanently appointed following an advertising and interview process.
[143] The evidence was that fixed-term appointments are made from an employment register maintained by the Department of Education.
[144] Section 7.3 of the Commissioner's Directions says:
"The following conditions apply to all employment registers maintained by and on behalf of Agencies:
...
Potential employees who are placed on employment registers are to be merit-assessed at the time of placement on the register.
Re-assessment of applicant's merits should occur at least annually.
...
Selection decisions are to be made in accordance with the State Service Principles...".
[145] Therefore, employees are merit-selected at the point at which they are entered on the employment register. Further, as already referred to, section 37 of that Act requires that all appointments of employees are to be based on merit and made in accordance with the Commissioner's Directions, and there is no distinction made in this regard between the appointment of a person as a permanent employee or the appointment of a person to a fixed-term contract. The appointment of a person can only be as a permanent employee or for a specified period or task, but all appointments are to be based on merit.
[146] I reject the submission that the employees the subject of this dispute cannot be permanent employees because they have not been merit-selected. Under the terms of the State Service Act and the Commissioner's Directions, the employees were merit-selected at the point at which they were entered into the employment register, and then, again, when they were appointed to a fixed-term position. This, of course, does not make them employees with a reasonable expectation of ongoing employment, but neither does it mean that they cannot be permanent employees for the reason of not having been merit-selected. According to the State Service Act, they already have been.
[147] Evidence against an expectation of continuing employment is the evidence of the employees themselves, and their own experience in working with the Department. The evidence showed, in every instance, a pattern of employment, in some cases stretching back many years, of start and finish dates with gaps in between.
[148] I find that their expectation, reasonably held, was that they would be offered further employment, not continuing employment, that is, that relatively early in the new school year they would be offered another "fixed-term" contract. In 2003 they were not offered any such further employment.
[149] The difficulty for the applicant is that the Commission must consider whether or not the employees had a reasonable expectation of continuing employment. This is not the same thing as a reasonable expectation of more employment being offered at some time in the future. There is no doubt, given the employees' experience, performance assessments and past history, that they had a reasonable expectation of being offered further employment in 2003, and, from the evidence, it seems that has not happened due to the large intake of new teachers.
[150] Mr Howard Smith's evidence, when asked what he thought was likely to happen was:
"..I've been picked up...in a draft earlier in the year, so I do relief until that comes along but I find that invariably the department needs people like me to fill positions either - after Easter usually these occur and so there might be a term here or a term there..."
[151] In 2002 Ms Amanda Stephenson did not commence employment until 25 March, well after the commencement of the school year. The evidence is unclear regarding Catherine Jaeger. It appears that she did some relief work during term one, 2001, and a five week block at Ogilvie High but dates are not specified. From this I assume that the employment was not continuous during first term 2001.
[152] The union submitted that each of the employees was, in fact, a continuing employee and that the contracts were not discrete, stand-alone contracts. The facts are, however, that each of the employees was offered and accepted contracts that had an end date. On some occasions they were extended, in circumstances where a permanent teacher had not yet been appointed to the positions. The employees understood that the contracts would come to an end when that event occurred. Their expectation, as their evidence shows, was that they would then, at some later stage, be offered further contracts in different positions. There is nothing in the evidence to indicate that they had an expectation that they would continue indefinitely in the positions that they were filling at the time of their employment came to an end. The fact, in itself, of the employees registering their details with the register for temporary employment shows that they knew the nature of the employment that they were entering into. In her evidence, Ms Jaeger was asked and agreed that she had "registered as a fixed-term teacher".
[153] Howard Smith has applied, unsuccessfully, for permanent appointments. He clearly understands that there is a difference between a permanent appointment and the short-term contracts he has been working under. He said: "I knew that if I didn't get a permanent position which I was after I would be getting a short term temporary position to do relief so..."
[154] Ms Stephenson's evidence was that she was aware that someone else would need to be on leave in order for her to be appointed to a fixed-term position. She had not applied for a permanent position in recent times.
[155] The union submitted that the employees should be re-employed in their positions, on the basis that they were not employed under fixed-term contracts, and, if they were not, then the only other employment available under the State Service Act is permanent employment. The claim was that they are ongoing employees and that the employer took a deliberate decision to terminate their employment.
[156] I have already found that the contracts were not fixed-term contracts, but were contracts that had an end date. The employees had a reasonable expectation that they would be offered further contracts, but did not have a reasonable expectation of extensions to their existing contracts.
[157] I find that the employees did not have a reasonable expectation of continuing employment but they did have a reasonable expectation of being offered further contracts at some stage during the 2003 school year. The fact that they have not been offered further contracts is unfair, given their experience with the Department and the satisfactory nature of their performance assessments.
[158] A further contract in the future would constitute a new appointment. The Commission is without power to order the employer to offer the employees such contracts. The Act, at section 3 - Interpretation - specifically excludes appointments and promotions from the definition of "industrial matter". The Commission is only able to make an order in settlement of an industrial dispute in relation to an industrial matter.
[159] If it were the case that the employees' history showed that they had been continuously employed, for the periods in question, without any breaks in employment, then my findings might be different, but they were not. To "continue" is to carry on without a break. What the employees had a was reasonable expectation that they would continue to be offered positions, sometimes at the beginning of the school year, sometimes later.
[160] Each case must be dealt with on its merits. In other circumstances it might be the case that employees employed under such contracts would have a reasonable expectation of continuing employment. For example, the employees in this case were appointed to fill positions until such time as permanent appointments were made. They would have had a reasonable expectation of continuing in those positions until that event took place, and, had their employment been terminated any earlier than the date the permanent appointment was made, then the Commission would have the power to make an order reinstating them to that position, if appropriate.
[161] It is difficult to understand why it took one year to fill the position at Mountain Heights School, in the case of Mr Smith; one and a half years to fill the position at Kingston High School, in the case of Ms Jaeger; and almost a whole school year to fill the position at Bellerive Primary School, in the case of Ms Stephenson. If the employees' performance was good enough for them to continue teaching for those extended periods, it is difficult to understand why they have not been offered further contracts. The employees are entitled to feel aggrieved with the system.
[162] The Commission was told that in March 2003 12.74 per cent of the total teaching workforce was employed on "fixed-term" contracts, equating to a full-time equivalent of 626.88 positions. It ought to be possible for the Department to employ a substantial proportion of those almost 627 full-time equivalent positions on a permanent basis. If there is a requirement to backfill teachers' positions when they are out of the classroom, it ought to be possible to have a pool of permanently employed teachers able to do this. The current method of operation is one of administrative convenience for the employer, but which creates uncertainty regarding job security for more than 13 per cent of its employees employed as teachers.
[163] In Fisher it was said that:
"... if an employer arranged for an employee to render service under consecutive contracts of employment for specified periods of short duration, where the nature of the employment is appropriate for a contract of indeterminate duration, and the employee had no say in the terms of the agreement, it may be said that the contract served the purpose of the employer by providing additional control over the employee. In such circumstances if the employment relationship is terminated by the refusal of the employer to `roll-over' the employment contract, the termination may be seen as part and parcel of an initiative taken by the employer at the commencement of the contract of employment to reserve that power."
[164] It is the case with the Department of Education contracts, as the evidence showed, that the employees had no say in the terms of the agreement. They were required to sign an acceptance form, accepting the terms of the contract, as a condition of the contract. It is just such a situation as described in Fisher, where the employer has reserved the power of control over the employees and the employees have no job security.
[165] I strongly recommend that the Department of Education balance operational requirements against industrial fairness, by reducing the percentage of its teachers employed on a series of temporary contracts.
[166] As previously stated, the Commission is without power to order that the employer re-employ the employees the subject of this dispute, but, in the interests of fairness, I strongly recommend that they be offered further contracts.
[167] The applications are dismissed, and I so Order.
P C Shelley
Commissioner
Appearances
Mr G Payne and Ms J Ashlin for the Minister administering the State Service Act 2000
Mr C Lane and Mr R Hunt for the Australian Education Union, Tasmanian Branch
Date and place of hearing:
2003
February 27, March 20, May 14
Hobart
1 Exhibit R4B
2 Exhibit A7
3 Transcript PN137
4 Transcript PN225
5 Exhibit R6
6 Exhibit A9
7 Exhibit R4
8 Exhibit A12
9 Regie National des Usines Renault SA v Zhang [2002] HCA 10 [14 march 2002]