T12942
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Robert Francis Gaffney and Minister administering the State Service Act 2000
Industrial dispute - termination of employment - Order issued REASONS FOR DECISION [1] On 3 May 2007, Robert Francis Gaffney (the applicant) applied to the President, pursuant to s.29(1A) of the Industrial Relations Act 1984 (the Act), for a hearing before a Commissioner in respect of an industrial dispute with the Minister administering the State Service Act 2000 (Department of Primary Industries and Water) (the Minister) arising out of a dispute in relation to termination of employment. [2] The matter was listed for hearing (Conciliation Conference) at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania on 23 May 2007 at 9.30 am (however, at the request of the parties this was subsequently changed to 5 June 2007) and 3 July 2007. BACKGROUND [3] The applicant had been employed at the Department of Primary Industries and Water (the Department) during the period from July 1992 until 19 April 2007, as a Scientific Officer, solely in the Resource Management and Conservation Division (RMC Division). The applicant had no significant breaks in his tenure over the 15-year period he was engaged by the RMC Division. The various positions and the duration for which the applicant held those positions were not contested. [4] The nature or category of the applicant's employment was presented as the significant point of difference between the parties. [5] At the cessation of his last contract with the RMC Division on 19 April 2007, the applicant failed to secure another contract; his employment ceased and his accrued entitlements were paid out. The applicant alleged his employment was terminated and that his dismissal was harsh, unjust and unfair. [6] Ms Tyson, for the applicant, contended that he was ostensibly a permanent employee, whose employment status was being manipulated to suit the RMC Division's need to comply with the Commissioner's Direction No.1, issued by the Office of the State Service Commissioner. The Commissioner's Direction No.1 states as follows:
[7] The applicant was engaged in a series of fixed-term appointments, all of which were consecutive. During the early stages of his tenure, it was conceded, some contracts may have been rolled over during that period. Mr Baker, for the Minister, stressed that it was the "position" which was rolled over not the incumbent. Although, in practical terms, the incumbent would normally continue on in the position. [8] Mr Baker stated that, since the early 2000's the engagement process conducted by the Department to employ fixed-term employees, including the applicant, adhered strictly to the Commissioner's Direction No.1. He stated that from that juncture on, the applicant gained all of his positions, and extensions to those appointments, through the State Service merit process. [9] Evidence showed that the applicant held a specific role for four years and other roles were formally extended at the end of the nominated period, whilst others terminated on the appointed date. It was demonstrated that each role enjoyed a unique identification number, which applied only as long as the role was extant. [10] Exhibit A1, is an uncontested summary of the applicants work record as a Project/Scientific Officer at the RMC Division and is summarised as follows: "July 1992 - 31 Jan 1993 4 Jan 2005 - 19 April 2007 (inclusive of extensions)" [11] Mr Baker asserted that the engagement of staff on fixed-term contracts was a legitimate use of that provision. [12] Ms Tyson asserted that the applicant performed the work of a Scientific Officer which was essentially the core business of the RMC Division throughout his tenure there. [13] Ms Tyson also contested that the Department's core work was principally to address issues concerning the State's fauna and flora. The required outcomes being delivered through projects created to address the specific issues. The projects were executed through Project Teams convened for the particular task. In the main, these teams comprised of fixed-term appointees. These views were not contested. [14] It was not contested that the application of the scientific officers' core skills was the process through which the various Departmental projects were executed. Ms Tyson argued that there was a continuing requirement for the applicant's suite of skills in the Department as evidenced by like positions continually being advertised. [15] Ms Tyson further asserted that the core work of the Department was ongoing, and as such will continue to require the same technical expertise to conduct the various projects. This was uncontested. [16] Ms Tyson stated that during his tenure the applicant was asked to participate in activities beyond the scope of his contract. Two examples were cited. The first, he was asked to support emergency action as a consequence of a major oil spill from the ship, the Iron Baron. The second example was, he substituted for the incumbent for six months in a zoologist position. [17] Mr Baker asserted the RMC Division was dependent on funding, both internal and external to the Department, as a prerequisite to offering fixed-term contracts. He asserted that the fixed-term employees were not in the Department's budget, but were engaged once funding, including external funding, was secured. No examples of funding external to the Department were adduced. He also contended that funding was for specific positions which did not exist beyond the extent of that funding. [18] Ms Tyson asserted that external funding of RMC Division projects was ongoing and used World Heritage funding as an example. However, this was not expanded upon, nor refuted. [19] Ms Tyson contended that the termination was at the behest of the employer. The applicant's capacity, performance and conduct have never been in question. Indeed, Exhibit's A2 and A3 were testimony to the regard with which officers of the Department held the applicant's performance. [20] Ms Tyson cited s.30(3) of the Act as follows:
[21] Ms Tyson also asserted that the ongoing nature of the work and the continuity of employment over the last 15 years gave the applicant a justifiable expectation of ongoing employment with the Department. [22] Mr Baker did concede, at PN14 of transcript "... we can understand that he may have had an expectation that vacancies would continue to arise for which he could apply". [23] Ms Tyson put the position that the applicant's acceptance of each new contract did not mean a new appointment. She did not, however, elaborate on her argument. [24] Ms Tyson confirmed that the applicant was given due notice of the termination of the latest appointment. She also confirmed that each of the applicant's contracts contained an end date. [25] Ms Tyson asserted the validity of the fixed-term contracts being offered by the Department were somehow in contention because they each included a clause which allowed either party to terminate the agreement during it's currency. She put the proposition that because the applicant's annual leave was rolled over each time he accepted a new contract, the contracts did not stand alone, but formed a continuum. [26] Mr Baker outlined at PN11 of transcript:
[27] Mr Baker continued at PN12:
[28] The applicant stated that most of the permanent positions advertised were for managerial roles for which he did not have the experience. He alleged he was prevented from developing the required skills for management roles because of the nature of his fixed-term employment. He further declared that he was dissuaded from acting in more senior roles because he would have had to resign from his fixed-term position to do so. [29] Mr Baker stated that the employment contracts accepted by the applicant were separate, succinct and discrete to specific projects. He said there was no ambiguity with respect to the contracts. He also made the point that the process was a series of offers and acceptances, the foundation for binding contracts and was amply illustrated in Exhibit M1. [30] Ms Tyson informed the Commission that, the applicant was considered a permanent employee by the Retirement Benefits Fund (RBF). The statement was not contested. She also asserted the applicant was considered a permanent employee under the Long Service Leave (State Employees) Act 1994. [31] Ms Tyson alleged the Minister breached the State Service Act 2000, at s.9.4 and 9.5, as a consequence of the alleged inappropriate use of fixed-term contracts. [32] Mr Baker asserted that there was a legislative basis for offering fixed-term appointments, and that both the State Service Act 2000 and all relevant Directions of the State Service Commissioner had been adhered to. [33] Ms Tyson claimed the applicant's dismissal from the RMC division was harsh, unjust and unfair. Mr Baker contended that the fixed-term position the applicant had occupied, no longer existed. [34] It was alleged by Ms Tyson, that the applicant was treated unfairly in his fixed-term rolls compared to permanent employees, and by not making him permanent he has been treated harshly and unjustly. She further alleged he was disadvantaged according to the State Services Principles regarding fairness and equity. [35] Ms Tyson further asserted the Department breached the State Service Act 2000 in that at s.7 of the State Service Principles, at (1), it states:
[36] Since the completion of the contract with RMC Division, Ms Tyson asserted the applicant has lost his favourable status in a particular RBF superannuation scheme. A calculation as to the extent of his expected financial loss was presented as Exhibit A6. [37] Mr Baker asserted that the Commission had no jurisdiction over RBF. [38] At PN586 of transcript, Ms Tyson pleaded:
[39] Ms Tyson argued at PN94 of transcript:
[40] Ms Tyson concluded at PN569 of transcript:
[41] Mr Baker asserted that the applicant had not sustained any loss because he had secured another fixed-term position with the Minister in another department. He further asserted that the Commission does not have the facility to order the Minister to appoint the applicant to a full-time role. [42] Mr Baker stated that there was a large range of projects in progress at any one time. He also advised that fixed-term contract employees make up 47% of the departmental complement of 170. [43] Mr Baker argued that the applicant was free to apply for a permanent position, but that the Department could not just place him in a permanent role. FINDINGS [44] The original application was notified as a dispute in relation to termination of employment under s29(1A)(a) of the Act. Ms Tyson argued that the applicant's termination was harsh, unfair and unjust. During the hearing Ms Tyson further argued the continuing fixed-term nature of the applicant's employment was also harsh, unfair and unjust and sought to have him employed in a permanent position. [45] It was not contested that the applicant enjoyed a continuous series of contracts within the same department over some 15 years. Evidence shows that the initial contract in each case was for a nominated position, notwithstanding that a number of contracts were rolled over or extended beyond the original timeframe. [46] It is perfectly understandable that projects have a finite duration. I find it difficult, however, to accept the Minister's argument that on the one hand each fixed-term position is intended to be discrete, and at the expiration of the contract the position no longer has currency; yet on the other hand, the individual is "rehired" continually over 15 years to apply exactly the same skill set to technically similar projects in the same department. [47] It was not challenged that on at least two occasions the applicant undertook duties outside those of his fixed-term contract remit. It would be unremarkable for a "permanent" employee to be moved into a particular position when a need arose. The utilisation of a fixed-term employee to fill a temporary situational need flies in the face of the Minister's claim that all fixed-term appointments are for specific, discrete roles. [48] Mr Baker, in his submissions, referred to the dependence on funding, particularly external funding, for the creation and duration of fixed-term roles. He did not offer any explanation of what the Department's definition of external funding was. One can only assume external funding is funding provided by sources outside of the Tasmanian State Government budgetary process. [49] In the matter of Elisabeth Weinstein v The University of Queensland, U No. 40264 of 20001, it is evident that the applicant's position was dependent on quite specific external funding. In Jeannie Ledington v University of Sunshine Coast, U2003/1389 and U2003/457, specific external funds were allocated to underwrite the position. There was no evidence educed in the instant matter to support the proposition that external funding was a prerequisite for the creation of any fixed-term appointment. [50] Accepting that the core business of the Department is ongoing, it would not be unreasonable to expect that each year a base budget would be developed embracing a certain amount of planned project work taking into account potential external funding. [51] There was no evidence educed which indicated the Department's overall complement of fixed-term and "permanent" employees varied from year to year. [52] The fact that the applicant had been employed for many years continually, as had others to a greater or lesser degree, implies an ongoing requirement for their skills. It was not addressed if the ratio of 47% fixed-term to permanent employees varied from year to year; for want of contradiction, I take it this ratio is reasonably constant. [53] I accept that such a budget for project work would vary year on year dependent on competing priorities. However, again for want of contrary evidence, I would suspect that any variation would be around the margin. There is no evidence to suggest there would be a significant fluctuation from the base budget warranting a wholesale reduction in projects and consequently a dramatic drop in the need for scientific officers. [54] The authorities relied on by Mr Baker and the instant matter present two significantly different scenarios. In the first instance the authorities tended to refer to a single position which was specifically funded. In some cases that funding was to continue beyond the aggrieved employee's tenure. The incumbents' sought to have their roles extended, or be give preference in the selection process for the ongoing position. [55] In the matter before this Commission, the Minister would want us to believe that the applicant's specific position ceased to exist at the end of the contract, yet the core skills that the applicant brought to the Department would continue to be required in any number of like roles. [56] The definition of "continuing employment" at s.30(1) of the Act states:
[57] Evidence showed that each of the applicant's contracts had a start date and an end date, and that this information was communicated to and accepted by the applicant, by way of signature, prior to his appointment to the positions. It was also conceded that the applicant was given notice in accordance with his contract each time the term of the specific contract was about to expire. [58] Indeed, if one considered each contract as a stand-alone agreement, as the Minister purports, the Department has adhered to all that would have been required of it to successfully allow the contract to run its course and expire by dint of the efflux of time. It is my view however that the applicant's many sequential appointments do not stand alone, but map out a continuum of employment. It follows that the applicant's particular situation is a contradiction to s.30(1), where there is continuing employment, yet there is a series of expressed end dates nominated. [59] Ms Tyson asserted that the applicant had an expectation of ongoing employment with the RMC Division. Indeed, Mr Baker conceded this point. [60] I can accept it was reasonable for the applicant to have had an expectation of ongoing employment with the RMC Division. However, that expectation, I would suggest, was more towards the generic role of Scientific Officer at large rather than the continuation of a specific project position. [61] The annual leave accrued by the applicant was rolled over into the next assignment throughout his tenure. He also enjoyed access to long service leave provisions. It appears his remuneration was in line with whatever particular award applied to the position he held. His package appears to be in line with that of any "permanent" employee. Unlike his "permanent" colleagues however, he does not have the security of ongoing employment, nor enjoys any monetary compensation for that insecurity. [62] Although his skills are in demand he is denied the opportunity for career advancement by virtue of his employment status. I do accept that the management of one's career is unequivocally the responsibility of the individual, however it is an aspect of those employed on fixed-term contracts that is inequitable with the opportunities offered to their "permanent" colleagues. [63] I take particular note of two unchallenged examples, given by Ms Tyson, of the disadvantage suffered by fixed-term employees. The first was where the applicant would have had to resign his fixed-term role to enable him to take a temporary position at a higher level, a situation not imposed on his "permanent" colleagues. [64] The second example was where the applicant lost his preferential superannuation status with RBF, a situation which, it appears, would not have occurred had he maintained a position with the RMC Division or had been a permanent employee. [65] I accept Ms Tyson's observation, which went unchallenged, that the core work of the Department is ongoing. I also accept that the applicant's expertise, and that of like skilled scientific officers, is fundamental to the success of the various projects undertaken by the Department. It would not take any stretch of the imagination to deduce that the Department could not function without the expertise of the scientific officers, in general. [66] At para 25, of Ledington v University of Sunshine Coast2, which is a quote from clause 14(c) of the agreement between the parties with regard to not continuing the employment relationship, it reads:
[67] This situation is certainly not the case in the instant matter, where it is very clear the need to have the range of skills is ongoing in the Department. [68] Ms Tyson also argued that the Minister failed to comply with s.30 of the Act:
[69] Mr Baker relied on s.30(3)(b) which offers "the operational requirements of the employer's business" as a valid reason. [70] It is my opinion that the Department's extended use of fixed-term contracts for what is purported to be operational reasons is not legitimate. [71] Ms Tyson made further allegations as to the duplicitous use of fixed-term positions by the Department to comply with the Commissioner's Direction No.1. I concur with her assessment. [72] With regard to the duration of any standalone fixed-term contract, or to its extension as mentioned above, the Department, certainly since the early 2000's has complied prima facie with the letter of Commissioner's Direction No.1 at 5.2 and 5.3, but not, in my view, the intent. [73] The Minister has failed abjectly to embrace 5.1 of the Commissioner's Direction No.1: "Permanent employment is the usual form of employment in the State Service". [74] There is an inherent unfairness in the way the Minister utilises fixed-term contracts. To have almost 50% of the Department's complement continually on 2 to 3 year contracts again flies in the face of clause 5.1 of the Commissioner's Direction No.1. [75] To re-engaged fixed-term employees contract after contract, year after year leaves no doubt in my mind their skills are core to the function of the Department and, as such, the principle of clause 5.1 must be the rule, not the exception. [76] At PN581 of transcript Mr Baker mused:
[77] I agree with Mr Baker's sentiment on "apply ourselves to the rules ...". This Commission is charged with dealing with matters before it under s.20 of the Act, "Commission to act according to equity and good conscience". [78] This matter was as much about the inequity of long-serving fixed-term employees compared with their permanently appointed colleagues as it was about an alleged unfair dismissal. In my opinion the matter of the reliance on "external funding" has not been shown to be valid. However, even if the Department demonstrated a dependence on external funding to support the engagement of some scientific officers, the continuing nature of the funding creates the environment where the tenet that "permanent employment is the usual form of employment" should be honoured. [79] In my reading of the Commissioner's Direction No.1, I doubt it was the State Service Commissioner's intent to facilitate the Department's ongoing application of fixed-term contracts to the same individuals doing ostensibly the same work, over tens of years. [80] At the expiry of the last contract with the RMC Division, the applicant was not successful in gaining a further contract with them. He did however win a position with the Department of Infrastructure, Resources and Energy, effectively the same employer, albeit a different department. [81] The argument that the applicant's employment was harshly, unfairly and unjustly terminated has not been significantly detracted from by the fact that he has been re-employed by the Minister. [82] The applicant, in the pursuit of any industrial matter is a permanent employee of the State Service. There can be no other interpretation of 15 years of continuous service doing the same work, within the same section of the State Service. His treatment is inconsistent with those of his colleagues deemed "permanent" and is therefore unfair and unjust. It has also caused him the potential of financial loss compared to his "permanent" employees with regard to his superannuation. [83] I accept this Commission does not have jurisdiction over appointments and cannot accede to Ms Tyson's plea to have the applicant appointed to a permanent position. [84] However, I draw the Minister's attention to s.20(1)(b) of the Act, which reads in part:
[85] Relying on this clause, I strongly urge the Minister to review it's employment policies and take cognisance of the Commissioner's Direction No.1, at 5 as follows:
[86] And only where a genuine operational need exists make use of:
[87] I Bring it to the Minister's attention that failure to comply with Directions of the State Service Commissioner is in breach of the State Service Code of Conduct, as at s.9(5)(b) of the State Service Act 2000. [88] It is my strong recommendation that the Minister take the necessary steps to have the applicant's employment position converted to a permanent position, as outlined in s.9 of the Commissioner's Direction No.1. [89] It is my view that after 15 years of continuous service the applicant had a genuine expectation of ongoing employment. He was however aware of the potential that existed for his employment to end at the closure of the contract. For that reason the termination of the applicant's employment on 19 April, 2007 was not harsh, but it was unjust and unfair, and I so find. [90] The applicant has subsequently been re-engaged by the Minister therefore I need not rule on re-employment. ORDER The applicant was without employment for three weeks. The Department is to reimburse the applicant the equivalent of three weeks wages at the rate he received immediately prior to 19 April 2007 on or before 14 September 2007, I so order. The applicant lost his favourable investment status with RBF as a consequence of the Department's actions. The Department is to intercede on the applicant's behalf with RBF to endeavour to have his original investment status reinstated, I so order.
James P McAlpine Appearances: Date and Place of Hearing:
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