Brown v State of New South Wales

106 Power of Commission to declare contracts void or varied

(1) The Commission may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the Commission finds that the contract is an unfair contract.

(2) The Commission may find that it was an unfair contract at the time it was entered into or that it subsequently became an unfair contract because of any conduct of the parties, any variation of the contract or any other reason.

(2A) A contract that is a related condition or collateral arrangement may be declared void or varied even though it does not relate to the performance by a person of work in an industry, so long as: (a) the contract to which it is related or collateral is a contract whereby the person performs work in an industry, and

(b) the performance of work is a significant purpose of the contractual arrangements made by the person.

(3) A contract may be declared wholly or partly void, or varied, either from the commencement of the contract or from some other time.

(4) In considering whether a contract is unfair because it is against the public interest, the matters to which the Commission is to have regard must include the effect that the contract, or a series of such contracts, has had, or may have, on any system of apprenticeship and other methods of providing a sufficient and trained labour force.

(5) In making an order under this section, the Commission may make such order as to the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case.

(6) In making an order under this section, the Commission must take into account whether or not the applicant (or person on behalf of whom the application is made) took any action to mitigate loss. 2 The proceedings are constituted by an amended summons for relief. The applicant seeks to have declared unfair a contract of employment between himself and the respondent. The applicant had been employed by the predecessor of the respondent in 2001 in an executive position in which he practised his profession as a town planner. Following relocation to Newcastle, the applicant was eventually appointed Regional Director for the Hunter Region in about September 2005 following the restructure of the former Department of Infrastructure, Planning and Natural Resources, which entity evolved into the current Department of Planning. This occurred at the time that Mr Frank Sartor became the Minister for Planning. The applicant reported to the Executive Director of the Department of Planning, Mr Richard Pearson. The Director General was Mr Sam Haddad. 3 From September 2005 until the end of 2007, the applicant said that under the new Minister and Director General, there was a tendency to centralise the significant planning decisions within the head office of the respondent. This detracted from the work carried out by regional offices and, in particular, the contribution that the applicant thought should be made to planning matters by the Regional Directors. 4 The applicant's employment with the respondent came to an end in February 2008 when he forwarded a letter indicating that he wished to cease that employment. The applicant asserted that in the circumstances which attended to his employment situation, he should as a matter of fairness have been considered as having been made redundant. He claimed that his contract of employment was unfair in a manner that I shall shortly describe. He claimed that he should have been afforded a redundancy payment in all the circumstances. 5 The amended summons described the unfairness, which the applicant alleged rendered his contract of employment unfair for the purpose of s 106, in the following terms:

[44] The Contract whereby the applicant performed work was or became unfair, harsh and unconscionable and contrary to the public interest in that: (a) It permitted the respondent to refuse or otherwise fail to treat the applicant as redundant and make an appropriate severance payment in circumstances in which the duties and responsibilities of the position occupied by the applicant had substantially changed in a manner that reduced the status, level of responsibility and attractiveness of the positions.

(b) It permitted the respondent to refuse or otherwise fail to treat the applicant as redundant and make an appropriate severance payment in circumstances in which the position occupied by the applicant was abolished as a consequence of the 2007 restructure and no alternative suitable position was identified to which the applicant would be redeployed.

(c) It permitted the respondent to refuse or otherwise fail to treat the applicant as redundant and make an appropriate severance payment in circumstances in which the applicant had been encouraged by the respondent to pursue alternative employment and representations had been made to the applicant that voluntary redundancies were likely to be available as a consequence of the restructure.

(d) It permitted the respondent to refuse or otherwise fail to treat the applicant as redundant and make an appropriate severance payment in circumstances in which there was conduct on the part of the respondent giving rise to a constructive termination of the applicant's employment.

(e) It permitted the respondent to refuse or otherwise fail to treat the applicant as redundant and make an appropriate severance payment in circumstances in which the applicant's position had been abolished and the applicant had been encouraged to move with his family to a regional area to take up the position.

(f) It failed to make provision requiring the respondent to provide the applicant with a reasonable period of notice or payment in lieu thereof in circumstances in which the applicant's employment came to an end as a result of the abolition of the applicant's position or substantial changes to the duties and responsibilities of the position.

(g) It caused the applicant to be in a position of unequal and inferior bargaining power and permitted the respondent to act in a manner that was one-sided and contrary to the applicant's interests.

(h) It is and was otherwise unfair, harsh and unconscionable or contrary to the public interest upon such grounds and for such reasons as the Court may find. 6 The parties sensibly reached agreement on the issues that needed to be determined in the proceedings. Those issues are as follows: 1. Whether the changes that occurred to the applicant's position of Regional Director within the Department of Planning in the period between 2004 and 2008 were such as to render the applicant's position redundant? 2. Whether the applicant was encouraged to seek other employment and to believe this position was redundant in the period leading up to him leaving the Department in or around February 2008? 3. Whether the conduct of the Department in the period leading up to the applicant leaving the Department in or around February 2008 was such as to constitute the constructive termination of the applicant's employment? 4. If the answer to 1, 2 or 3 is in the affirmative, what severance and/or redundancy payments should apply, including whether the Premier's Memorandum No 96-5 Managing Displaced Employees Policy ought apply? The factual background

7 A great deal of evidentiary material comprising affidavits and documents annexed thereto became evidence in the proceedings and some of the deponents gave oral evidence. 8 In his evidence, the applicant said that he had over 25 years experience as a town planner working for state and local government and in the private sector. Following his reemployment with the predecessor of the respondent in 2001, the applicant was relocated to the Hunter Region whose head office is in Newcastle in about August 2004 and he moved there with his wife and children. He was subsequently promoted and, in around September 2005, when the current Department of Planning was created following a restructure of the previous Department, the applicant was appointed Regional Director for the Hunter region. This occurred, as I have previously said, following the appointment of Mr Frank Sartor as Minister for Planning, the appointment of Mr Sam Haddad as Director General of the Department and the appointment of Mr Richard Pearson as its Executive Director. The applicant reported to Mr Pearson. The applicant said that the new Department and the influence of the Minister and executive staff:

[B]rought with it a significant change in management style and practice and departmental policy. The Department became more overtly developer focussed and planning functions and responsibilities were progressively centralised. 9 The effect of the applicant's evidence was that he and members of his staff were increasingly marginalised in dealings with large development companies in the Hunter Region, the consideration of significant development sites in that region, the amendment of proposed zoning boundaries and other provisions in draft Local Environmental Plans covering land owned by the development companies. A significant Regional Strategy for the Hunter Region was the subject of a draft document released in December 2005. During the preparation of that document, the applicant said that head office staff became "considerably more involved" in drafting the Strategy document and that his regional office was overruled "on many fundamental policy positions as well as detailed editorial aspects of the Strategy." The involvement of head office was said to have "intensified" whilst the draft Strategy document was being publicly exhibited. Although the applicant's office prepared a summary of submissions and the like, the final determination of recommendations which were finally considered by the Government was undertaken by head office personnel. The applicant said that he was not invited to a number of meetings held by the Director General and other senior persons with "influential developers in the region" and, if he did attend meetings, he did not chair them or carry out a leading role. 10 Furthermore, the creation of Local Environment Plan Review Panels, members of which were appointed by and mostly occupied by head office personnel, reduced the part played by regional offices in this area. 11 The centralisation of control in head office was also manifested by the introduction of Part 3A of the Environmental Planning and Assessment Act which allowed the Minister for Planning, then Mr Sartor, to exercise much greater influence in planning matters generally and in new developments in particular. 12 The impact of all these matters created, in the opinion of the applicant, a significant reduction in the strategic planning responsibilities and functions of regional offices and the Director of regional offices. There was a resultant reduction in staff numbers in the Hunter Region office. 13 The applicant complained that developers who were dissatisfied with their dealings with either the local council or the applicant's office were able to approach the Director General directly in order to prosecute their interests. 14 In March 2007, the Director General announced that he was reviewing the structure of the regional offices of the Department. This created some concern for the applicant. He said:

[56] There followed a number of months with numerous staff discussions about the likelihood of a restructure and job losses, including redundancies. As a result of the concerns described above, my growing dissatisfaction with my working environment, my role and the management of the Department I was interested in pursing the possibility of a departure from the Department on the basis of a redundancy. I was very concerned that I had moved my family to the Hunter Region, and caused considerable disruption in so doing, and did not wish to simply resign. I genuinely perceived that I no longer had a meaningful role to play within the Department and that my ongoing employment was on an unfair basis, and wished to be compensated as a result. 15 The applicant said that he had regular discussions with Mr Pearson from August 2007 about the restructure, the applicant's future following any restructure and whether or not there were likely to be any opportunities for him to take voluntary redundancy. He said that he was told by Mr Pearson that redundancy was a definite possibility. However, the applicant conceded in cross-examination that he was never informed of the likelihood of being able to take voluntary redundancy other than as "a possibility". 16 On 16 August 2007, the applicant forwarded an email to Mr Pearson "Re Possible Regional Restructure." It referred to the fact that "the role and level of responsibility of RD has changed significantly over the last couple of years, and I believe that there is scope for a rationalisation of senior management positions in some of the regions." He said that in the event of a review or restructure "I would be prepared to consider a voluntary redundancy from the Dept." 17 The email continued:

I am raising this again because I now have another offer to shift to a new role in the private sector. Your advice on the Dept's intentions regarding its regional structure and RD positions would help me to make a decision. The prospect of a VR would obviously make the current offer more attractive to me, and could possibly enable the Dept to implement some organisational changes to reflect current priorities. 18 The applicant gave evidence of a number of conversations with Mr Pearson over the following months throughout 2007. He said that Mr Pearson had told him that a voluntary redundancy was "definitely a possibility." 19 In about mid September 2007, Mr Pearson raised with the applicant the fact that the applicant was in discussions with a private planning organisation, Planning Workshop Australia. The applicant said that he told Mr Pearson that he did not want to pursue the offer at the present time but wanted to wait until the Department's restructure was "clearer" and whether he was to be offered voluntary redundancy. 20 In his affidavit, the applicant gave certain reasons for exploring employment with Planning Workshop Australia. He said:

[64] My reasons for pursuing this employment opportunity with Planning workshop were: · erosion of the my (sic) responsibilities with the Department;

· my concern for my future with the Department in the event of a restructure;

· my concern regarding the erosion of the responsibilities and roles of the Hunter Regional team and my ability to make a meaningful contribution as a planner in that context;

· the necessity for me to ensure continued employment as a senior planner within the Hunter Region and to ensure a secure standard of living for my family. [65] I would not have left a challenging role within the Department for a consultancy role with Planning Workshop had my contract with the Department not become one of extreme unfairness. I had worked as a consultant in the past and concluded that I was best suited to work in the public sector. Nevertheless I saw the offer from Planning Workshop as a life line in the circumstances at that time. 21 Email communications between the applicant and Mr Garry Fielding, a principal of Planning Workshop Australia are indicative that there were discussions between them dating back to April 2007. On 5 June 2007, the applicant forwarded Mr Fielding "a brief summary of my qualifications and experience" and a detailed CV. After giving details of his current remuneration package, he said:

As we discussed, I am very interested in the prospect of joining the Hunter office of Planning Workshop Australia, initially working with you as a Senior Associate. The opportunity to become a Director within the company as you transition towards retirement is also an option that I am very keen to pursue at the appropriate time. 22 On 27 June 2007, in an email to Mr Fielding, the applicant referred to a lunch the previous day. He said:

I'm keen to meet up again on a monthly basis ahead of a potential October start date. When you are ready, I wouldn't mind something in writing so that I can firm up my plans and transitional arrangements. 23 An email on 20 July 2007 referred to a letter of offer to join Planning Workshop Australia as a Senior Associate based in the Newcastle office. The email said:

I am very pleased to confirm my acceptance of this offer, and I would now like to move towards finalisation of the terms and conditions of my employment. After referring to some matters of detail, the applicant indicated that he anticipated being able to commence duties on Monday 8 October 2007. 24 In an email of 5 September 2007 to Mr Fielding, the applicant referred to the possibility of a restructure of regional teams within the respondent, and said "I would like to keep the option of a VR open by deferring my resignation for a few more weeks." He asked that his start date be deferred to 5 November. Mr Fielding replied that he was happy to defer the start up date but wanted to be in a position by early October to "advise the world" that the applicant was joining his organisation. The applicant asked that the announcement be deferred until 15 October. 25 On 25 September 2007, in an email to Mr Fielding, the applicant said that he was due to meet Messrs Haddad and Pearson on 5 October. He asked to meet Mr Fielding for coffee the day before "to help me plan my tactics for the meeting." He said: "Could be my last chance to negotiate a VR from the Dept." In an email dated 23 December 2007, addressed to a number of recipients, the applicant wished them a "Happy Christmas 2007" and stated that he would be joining Planning Workshop Australia as a Senior Associate based in Newcastle "and expect to make the move to the private sector in February 2008." Amongst the addressees were persons at Urban Planning Solutions, Planning New South Wales, Sydney Water and Urban Futures. 26 In his affidavit, the applicant referred to a number of meetings that he had with Mr Pearson and with Mr Haddad. He was endeavouring to clarify when the restructure would occur, its likely impact upon him and whether he would be entitled to voluntary redundancy. One of those meetings occurred on 5 October 2007. Nothing conclusive was said by Mr Haddad other than that he wished to accelerate the restructuring process. It was Mr Pearson's evidence that he was keen for this to happen. 27 The applicant said that he met with Mr Haddad again in his office on 17 October 2007. At that stage, Mr Haddad was aware of his discussions with Planning Workshop Australia. The applicant says that there was a discussion about when he was required to join that organisation, although Mr Haddad does not recollect this discussion. The applicant says, and Mr Haddad does not recall, that Mr Haddad undertook to discuss whether a voluntary redundancy was available in about three weeks time after discussions with the Minister. In the meantime, the applicant says that Mr Haddad told him to continue discussions with Planning Workshop Australia and to negotiate a starting date. Mr Haddad denies this. 28 The applicant then said in his affidavit evidence that because he had "tentatively" made arrangements to start work for Planning Workshop Australia in late November 2007, he sought and was granted approval for three months leave without pay. The application was made on 13 November 2007 with leave to commence on 19 November. When giving the reason for absence, the applicant stated: "As discussed with DG." However, the approval was granted on the basis that the applicant was precluded from undertaking secondary paid employment without the consent of the Director General. The applicant said that he did not officially commence employment with Planning Workshop Australia during this period but did attend their offices to familiarise himself with the work that he had to perform. He avoided dealing with any file that would create a potential conflict of interest. 29 On 20 and 21 November 2007, Mr Pearson received telephone calls from Mr Fielding enquiring whether it would be possible for Planning Workshop Australia to employ the applicant whilst he was on leave without pay. He was told that this was not possible. 30 On 19 November 2007, the applicant executed a formal deed with Planning and Management Consultants Pty Ltd, trading as Planning Workshop Australia, in which he acknowledged by recital that he was an employee of that company. The deed contained provisions directed towards confidentiality and a 12 months' restraint of trade. 31 In cross-examination, the applicant sought to explain that he had entered into such a deed because he was attending the company's offices to familiarise himself with the work and was therefore exposed to information which would necessitate a confidentiality agreement. 32 Because the Director General had declined to consent to the applicant working for Planning Workshop Australia whilst on leave without pay, the applicant endeavoured to return to work for the respondent. However, this was declined because, on the evidence, the respondent had designated certain persons in acting positions to cover the work that the applicant would have performed had he not been on leave and the respondent did not wish to interfere with these arrangements. 33 There was a meeting held at the offices of the respondent on 20 December 2007 which was attended by all Regional Directors, including the applicant, together with Mr Pearson, Mr Haddad, Mr Furlong, the Director, Strategic Business Development, and other human resources staff. A number of persons have given evidence about what occurred at that meeting, including the applicant and Mr Pearson. Evidence was also given by Mr Lindsay Usher who was, at the time, Regional Director of Western New South Wales. Mr Usher made contemporaneous notes about the discussion that took place that day. Those notes are in evidence and their content accords with all of the other evidence given about what occurred at the meeting. Given that they are contemporaneous, I prefer to rely upon them rather than the recollection of witnesses contained within affidavits sworn some years after the event. 34 The Director General announced a restructuring of the regions operated by the respondent. The number would reduce from the present five to four regions. Relevantly, the Central Coast and Hunter Regions would be merged. The Director General said that he did not wish to displace any staff. He would do "as much as possible to find jobs for displaced people." 35 Mr Furlong told the meeting that there would be 35 less staff overall. This reduction would be by way of attrition and that there would not be any program for voluntary redundancies. 36 There was discussion about how the reduction in Regional Director level numbers would be accommodated. It was said that at this level there would be a "spill and fill" operation but that there would be no need to spill current positions below the Director level. 37 I should emphasise that this was said to represent the Director General's then intentions. 38 In his evidence, Mr Usher said that there was no further meeting until about 20 February 2008 when Mr Haddad and Mr Furlong made a presentation to staff in Sydney. It was at that stage that an announcement was made that thenceforth there would be four regions. At that meeting, Mr Usher was directly appointed as Regional Director of the Western Region. The Director General also announced direct appointments to the other newly created regions. It appears that the decision by the Director General to directly appoint Regional Directors was not taken by him until shortly before 20 February 2008. 39 In his evidence, the applicant said that he did not return to work after going on leave. It was the evidence of Mr Pearson that the applicant was considered to be on duty on 17, 18 December and on 20 December when he attended the meeting. Thereafter, the applicant continued his leave but, in fact, proceeded on sick leave up to the date of his resignation. This was brought about by means of a letter dated 4 February 2008 from the applicant addressed to Mr Haddad, entitled "Cessation of Duties." It gave 14 days' notice of cessation of duties from 18 February 2008. 40 In that letter, the applicant said that his reason for ceasing work for the Department of Planning was because of

[T]he Department's actions in withdrawing my original functions and responsibilities as regional director in the Hunter regional office, a process which has been incrementally occurring over the past two years. He referred to a substantial reduction in his role since November 2004. He also referred to discussions with the Director General and Mr Pearson "during the latter half of 2007." He said:

I consider that it has been clearly acknowledged and also implied on several occasions that my circumstances are ones which warrant the offer of a voluntary redundancy. I relied upon representations made to me in making decisions about my future career path. He then referred to his relocation to Newcastle in 2004 on the basis of what he described as "a challenging regionally based strategic planning and management role." He said that he changed his children's schooling arrangements, sold his home in Avalon and his wife resigned from her position as a solicitor so that he could take up duties in Newcastle. He requested that he be provided with voluntary redundancy and foreshadowed "pursuing this matter further". 41 The picture painted by the applicant of the diminution of his responsibilities and the marginalisation of the work performed by him and his office changed in the course of his cross-examination and as a result of other evidence given in the proceedings. The applicant acknowledged that the provisions of Part 3A had been introduced some four months before he had been appointed Regional Director. Accordingly, his work was always subject to the regime established by that Part. Furthermore, his position description was reflected in a document that had always applied to him. 42 I can now expand on the applicant's evidence in chief concerning the Hunter Region Strategy document. In 2005, the Hunter Region was involved in the preparation of a Regional Strategy. The applicant described it as "an urban growth and development strategy for the lower Hunter Region." The preparation of a draft document was coordinated by the applicant's Department. The draft Strategy prepared by the applicant's office became evidence in the proceedings. Ultimately, after public exhibition and the consideration of submissions, a final document was released by the respondent, but not by the applicant's office. 43 The applicant complained that head office had amended the draft Strategy as prepared by his office before releasing it for public comment. 44 The applicant conceded that his office was involved in dealing with the submissions which were made as a result of the exhibition of the draft plan and referring them to head office. 45 As part of his complaints concerning the manner of his treatment by head office, the applicant pointed to what he said were significant changes made in the final lower Hunter Valley Strategy document when compared with the draft that had been substantially prepared in his office. He thought that the final result had yielded to the requests of developers for the rezoning of residential land which was unjustified. He noted also that the ultimate Strategy plan when dealing with the rezoning of land for residential purposes had created a number of memoranda of understanding ("MOU"). Other evidence given in the proceedings indicates that these MOU's contained provisions which required an exchange of land for conservation and other purposes by a developer as a condition of the rezoning of other land for residential and other purposes. I should add that the applicant's concerns were not limited to the rezoning of land for residential use but extended to the designation of land for employment and other purposes. 46 It was the applicant's complaint that some of the land which the ultimate Strategy document proposed for rezoning, particularly as residential, was of low priority and "there were alternative sites that in my view were more suitable." In essence, it was the applicant's complaint that the process which had been undertaken since the release of the draft Strategy plan lacked transparency in that developers and other interested parties had bypassed his office and had made submissions directly to persons in the head office of the respondent, including the Director General. He said that he had been personally excluded from some of those meetings. He thought that over a period of six months that he had been excluded from about six meetings. Not all of those had been held with the Director General. Some of them had been with Mr Pearson and the Minister or the Minister's policy adviser. 47 When asked about the involvement of his office in ongoing discussions leading up to the release of the final plan, the applicant said:

The office was involved in responding to a certain extent but it was quite a substantial turnaround from actually having carriage of the document and overseeing the preparation of the strategy to being basically requested to provide advice sometimes and not having any input into the final decision, just providing background advice and options and scenarios. That was quite a distinct change in the way that the Director General and the executive interacted with me and saw my role in the preparation of the strategy. 48 In further evidence, the applicant said that his office did provide a certain level of advice and assistance to head office in connection with the representations which had been made by interested parties. He said however that:

… I was placed in a very uncomfortable position because I was being asked to provide advice on sites that our office had recommended as being unsuitable and that is one issue but I was being asked to provide advice in an environment where there was no transparency or consultation with the various parties and I felt that it was a very unbalanced approach. 49 Some indication of the applicant's concerns may be obtained from an email, which the applicant forwarded to Mr Pearson on 20 September 2006, concerning the final Cabinet Minute on the Lower Hunter Regional Strategy. That email was in the following terms:

I've just spoken to Nicole and indicated that I would appreciate a discussion with you later today about the Cabinet Minute on the LHRS.

My team are currently helping Brett to complete the document.

I'm concerned that the landowner negotiations and fundamental components of the Hunter strategy are not heading in the right direction and would like to discuss this with you before we sign off on the final text.

From my perspective it seems as though the major landowners are sensing the govt's anxiety to close the negotiations quickly, and are capitalizing on our short time frame to extract very significant development opportunities in return for land dedications. I'm worried that the "iconic achievement" of delivering new NPs will be at great cost to some of the local communities and the integrity of our strategy.

We have reached this stage in the LHRS process with good support from the 5 councils, and have managed to achieve a more balanced way of thinking within the major environmental, development and community groups in the Hunter. The amendments and concessions that we are now contemplating could put the credibility of the whole exercise at risk unless we reduce the scale of development that is being contemplated in the following critical locations.

An agreement to allow 700 dwellings at Crangan Bay is excessive in scale and inappropriately located and the Rosecorp proposal for a 50/60 ha development footprint adjacent to Catherine Hill Bay will overwhelm the heritage and other unique qualities of on (sic) this tiny village. The prospect of HH being offered 8000 dwellings sites, 160ha of employment land and 300 rural residential lots is a massive concession with little justification, particularly given the reluctance to dedicate a major proportion of the residue Sweetwater area.

Is it possible to have a "cooling off" period in the negotiations to reflect on the outcomes we are achieving? If the landowners detect a reluctance to urgently proceed the govt may put itself in a stronger bargaining position.

At the very least, I recommended that the Cabinet Minute is strengthened to indicate that we don't need a deal with HH to deliver a credible strategy for the Lower Hunter. We can accommodate a 150,000 population increase, and deliver the required 110,000 dwellings without a development at Branxton.

regards, Steve 50 There then followed this exchange:

Q. Well, you may have felt that, sir, but your role was to provide the advice and the information that you were being asked to provide? A. Which we did.

Q. And that was in accordance with your role as Regional Director, wasn't it? A. Yes.

Q. So there was nothing about the way in which the Lower Hunter Regional Strategy was developed that was inconsistent with your role as Regional Director, was there? A. Well, I beg to differ. I found the way that the strategy was being finalised was totally inconsistent with the adopted strategic planning principles that had been used in the planning profession for many years.

Q. But your role as Regional Director was not strictly a planning position, was it? A. It required planning qualifications to hold that position.

Q. But it went a bit further than just being someone who had a planning qualification, it required you to be a co-ordinator? A. Yes.

Q. It required you to be responsive to government policy? A. Yes.

Q. It required you to implement government policy? A. Yes.

Q. It required you to manage a group of planners? A. Yes.

Q. It required you to take on an administrative role? A. Yes.

Q. It was simply more than a hands-on planning role, wasn't it? A. It was.

Q. And when you were asked, as you were in your evidence, to provide advice and assistance about the development of the strategy, you did so in accordance with your role as Regional Director? A. Yes. 51 The evidence given in the proceedings is to the effect that although there was ultimately a concentration of ultimate decision-making in the hands of the Minister and head office, nevertheless the applicant and his regional office participated in the process concerning the Lower Hunter Region in a meaningful manner. The applicant's complaints were directed significantly to the decision-making process and the concentration of decision-making in the hands of certain people. 52 Another complaint that the applicant made against the respondent with respect to the unfairness of his contract of employment was the lack of communication from head office personnel and in particular the Director General Mr Haddad and the Executive Director Mr Pearson. He gave as an example the reaction to a difficulty that had arisen between his regional office and Hardie Holdings Pty Ltd, whom he described as "a major developer" in the Hunter Region. The difficulty arose, on the evidence of Mr Pearson, as a result of a direction issued by the applicant addressed to the 12 councils within the Hunter region concerning the manner of dealing with applications for amendments to Local Environmental Plans. The applicant had required that environmental studies be undertaken by someone independent of the developer or other entity who was a proponent of rezoning. As a result of that directive, a letter of complaint was forwarded on behalf of Hardie Holdings Pty Ltd to the Director General. A copy of the letter of complaint was forwarded by Mr Haddad to the applicant who replied by way of a detailed memorandum. The applicant complained that his memorandum was not acknowledged by Mr Haddad. To the contrary, Mr Haddad issued a planning circular that made it clear that council were permitted to require the production of a Local Environmental Study where necessary. It permitted the use of "proponent-prepared studies" provided that they were "properly managed and reviewed prior to adoption by council." The applicant complained that he was "overruled by the Department completely." 53 In this affidavit, Mr Pearson explained that the

[B]lanket direction issued by Mr Brown, ie, that such studies be prepared only by the council, and not on behalf of the proponent for review by the council, represented a narrowing of the scope of the process which was not considered appropriate and on which no significant consultation had occurred. It was necessary for the Department to issue a circular on Local Environmental Studies to all councils to clarify the position with regard to proponent-prepared studies in part to correct Mr Brown's direction. This was said to be done to ensure consistency in approach throughout the whole of New South Wales rather than creating a different regime in the Hunter region. Mr Pearson's evidence was corroborated by Mr Haddad in his oral evidence given in the proceedings. 54 In cross-examination, after conceding that the Director General was entitled to act in the way that he did, the applicant formulated his complaint as being one of lack of communication to him from the Director General. 55 The applicant also gave evidence that he had been asked by Mr Pearson in an exchange concerning a particular matter to delete an email. He referred that matter to ICAC, which determined that no action was necessary. Mr Pearson explained, in the course of his evidence, that his request was more in the nature of not being required to refer to that email because the subject matter of the email had, in fact, been resolved and was no longer a current matter. 56 The applicant complained that the formation of the Local Environment Plan Review Panel reduced significantly the work that was being handled through his office. He described what occurred in his affidavit evidence as follows:

[33] In February 2006 the system of assessing and working with local Councils on spot rezoning proposals and amendment of LEPs were altered. Prior to this time applications for rezoning and drafting of LEPs were overseen by the regional offices a fundamental responsibility (and had been for over 20 years). The creation of the LEP Panel removed this responsibility and placed it in the hands of a panel appointed by head office and situated in head office.

[34] Regional offices previously processed many LEPs autonomously with the only referral being for a Parliamentary Counsel opinion. Regional offices increasingly carried out a predominantly checking function and required head office approval prior to providing any substantive advice to councils.

[35] The regional teams' remaining function in this area was to provide background information, fill in pro-formas and be on stand-by for telephone conferences if further information was required. These remaining roles and responsibilities of Regions and Regional Directors in relation to LEPs were not equivalent to those which existed before the creation of the LEP Panel.

[36] I was never invited to sit as part of the LEP Panel nor provide advice on LEP amendments outside the Hunter. 57 It should be observed that the work carried out by this Panel was not restricted to the Hunter Region but applied to all regions throughout New South Wales. Mr Pearson responded to this matter in his affidavit evidence in the following terms:

[31] I refer to the applicant's affidavit, paragraphs 33 to 36 - LEP Review Panel and say: The establishment of the LEP Review Panel was part of the reform of the planning system. In conjunction with the Standard Instrument (LEP) Order 2006 this enabled a more modern, effective and easier to use system. The regional teams play a key role in that they are responsible for working with local councils to develop new comprehensive LEPs based on the standard instrument. This is a very significant responsibility and undertaking for the regional teams as it guides the future planning direction for local councils and the regions rather than merely processing LEP amendments and spot rezonings. …

[32] The regional teams are responsible for reviewing Council draft LEP amendments, preparing reports and recommendations on whether LEP amendments should proceed and are regularly consulted by the LEP Review Panel during its deliberations. Regional Directors (including the current Hunter & Central Coast Regional Director) are represented on the LEP Review Panel, increasing their responsibility as they have to consider LEP amendments for regions outside their own. Practice has shown that the advice of regional offices on whether LEP amendments should or should not proceed is overwhelmingly accepted by the LEP Panel. 58 Notwithstanding the concentration of responsibility of part of the rezoning process in the hands of a new Panel, which applied throughout New South Wales, I am satisfied on the basis of the evidence and in particular that of Mr Pearson that the regional offices and therefore the Regional Directors retained a great deal of responsibility in this area. The fact that some functions, which were formerly undertaken by a regional office, were now to be undertaken as part of the centralised process does not, of itself, result in some significant diminution of the work of regional offices or an emasculation of the role of the Regional Director. 59 The applicant complained that the introduction of Part 3A of the Environmental Planning and Assessment Act adversely impacted upon the work performed by his regional office. In explaining how the provisions of this Part of that Act operated, Mr Pearson said:

[33] I refer to the applicant's affidavit, paragraphs 37 to 40. The Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 was assented to on 16 June 2005 and commenced on 1 August 2005. This amendment introduced Part 3A. …

[34] This amendment occurred at a time prior to the reestablishment of the Department of Planning as a separate agency. There have been no significant changes to this section of the legislation under the Department of Planning or since the applicant became the Regional Director.

[35] Part 3A provides a streamlined assessment and approval process for major infrastructure and other projects of State or regional significance. These type of projects were previously assessed and recommended for approval or otherwise under other parts of the EP&A Act (Parts 4 and 5). The Department has had a role in assessing major development proposals prior to the commencement of Part 3A. These proposals have been dealt with centrally for a long period of time (and certainly long before Mr Brown became Hunter Regional Director) in view of the need for specialist technical and assessment expertise. The Regional Offices are routinely consulted on such proposals, provide the strategic context in which such proposals are assessed and expertise on key issues such as infrastructure contributions.

[36] The size, scope and sensitivity of a number of the proposed developments within the Hunter Region meant that they would fall well within the definition of a project of State or regional significance and would have been dealt with centrally notwithstanding the introduction of Part 3A.

[37] Any additional consent powers associated with the introduction of Part 3A represented a transfer from local government to the Minister, not a transfer from the regional offices to head office as claimed. 60 Evidence given in the proceedings was to the effect that a number of significant projects in the Hunter region were "called in" by the Minister in the period following the introduction of Part 3A. These included significant land areas that were rezoned for residential development. 61 I should add that at all times during his holding of the position of Regional Director, the provisions of Part 3A applied. Accordingly, any impact that it had on the work of the regional office was consistent throughout the time that the applicant occupied that position. 62 The applicant also complained about the establishment of a Cities Taskforce by the Department which was given responsibility for the development of a series of six city centre plans, including Newcastle. This occurred in about 2006. The applicant complained that the Hunter regional office was excluded from involvement in the development of the city plan for Newcastle during 2006 and 2007. He conceded that the regional office was involved in a limited way by providing background information when requested and administrative support. The applicant submitted that this was an example of the exclusion of his office from responsibility in this area. 63 However, as the applicant conceded his office did have some involvement in the process and there was evidence that a representative from his office was involved with the Taskforce who provided the applicant with regular briefings and updates. 64 Given that the work of this Taskforce took place in 2006 and 2007, it cannot be said that the structure of the Taskforce created some form of diminution in the applicant's responsibilities. 65 In the course of cross-examination, the applicant set out in clear terms the unfairness that he said attended his contract of employment in the position of Regional Director. He was asked about comments made in his principal affidavit to the effect that he believed that he no longer had a meaningful role to play and that he wished to be compensated for the unfair basis of his ongoing employment. The following exchange took place between the applicant and counsel for the respondent, Ms Brus:

Q. There are three elements in that last sentence, one is the absence of a meaningful role, or you say a perception of no longer having a meaningful role, and you thought your ongoing employment was on an unfair basis; what was unfair about it? A. The primary thing that was unfair was the, I guess the nature of the relationship with head office that what had attracted me to the role of regional planning co ordinator initially in western New South Wales and subsequently Newcastle, that it was one of the most senior roles in this Department with a high degree of autonomy and the ability to interact with a whole range of stakeholders and to have a major influence on the operations of the Department. But I felt what had become unfair was that because everything had been centralised to such a great degree and responsibilities and projects had been withdrawn from the office, that I didn't have the ability to perform the role that I was initially recruited to and had accepted and transferred to Newcastle to undertake.

Q. That description is one of perceived change, isn't it, you have identified the changes you believe there was now a centralised role, and you believed that you no longer had an autonomous position; how is that change unfair? A. Well, I think any reasonable person would feel they had been in a responsible position with a large extensive range of responsibilities and those responsibilities had been incrementally withdrawn. It's not as though it wasn't up front, it was a progressive erosion and there was no proper communication about it. It went from the position I first accepted to one that was very much administrative in focus with insufficient resources to undertake projects to a meaningful way with a loss of credibility in terms of the stakeholders, General Managers and Directors of Planning in the Local Council who had previously seen the Regional Director's position as pivotal to carrying out the Department's responsibilities and knowing what was happening within the Department I will keep going, sorry that had been eroded and that was very unfair.

Q. Essentially, sir, you just didn't like your job any more, did you? A. Who would?

Q. That's the truth, isn't it, you didn't like your job any more? A. I loved being a Town Planner. I'm passionate about it.

Q. You didn't like your job of being a Regional Director any more, did you? A. The job wasn't the same job I went to.

A. The nature of the job. Look, I don't I'm not going to go as far as saying I didn't like the job. I just felt that it was very unfair, that the job had been diminished to such an extent that there was no clear set of responsibilities where I could use the years and years of experience that I had accumulated. 66 In cross-examination, the applicant conceded that in September 2007 he was unaware of the outcome of the restructure that was being contemplated. He said that he knew that it was "to do with the regional offices and the functions that had, up until that stage, been carried out by regional offices." 67 In his affidavit, the applicant had said that one of the reasons that he was pursuing employment with Planning Workshop Australia was because he had been "consistently mismanaged" by the respondent. He named Mr Pearson and Mr Haddad as the persons who had mismanaged him. He gave as examples Mr Haddad's letter to Hardie Holdings and his engagement with Mr Pearson concerning the draft strategy plan. He said, in elaboration:

I believe that the basic management principles that those two senior executives used in their positions were contrary to accepted and appropriate managerial style in terms of communication liaison, collaborate working arrangements, a whole host of similar characteristics which established a pattern, in my view a pattern of mismanagement 68 The applicant also said that Mr Furlong's management "of issues at around that period constituted mismanagement in my opinion." 69 In summary, the applicant thought that he was working in "an overall climate or culture of what I interpret was a hostile working environment … It was hostile in terms of the nature of communication and interaction between professional officers. It wasn't collaborative, it was very much speak when you are spoken to, if I need advice I will come to you, if I don't you won't hear from me, that was the climate in which I was working." 70 It was following the meeting on 17 October with Mr Haddad that the applicant put in his application to take leave without pay. At that stage, he did not tell Mr Haddad about the advanced state of his negotiations with Planning Workshop Australia, nor did he tell Mr Pearson, to whom he submitted the form, about these matters. He did, however, tell Mr Pearson that he was going to do some work on a home he had purchased and undertake some preparatory work on a development application. He said that he did not tell Mr Pearson that he was going to undertake some unpaid work for Planning Workshop Australia "because he would have understood the circumstances." 71 The applicant asserted that he had been encouraged by Mr Haddad to negotiate a starting date with Planning Workshop Australia in their conversation on 17 October 2007 after telling Mr Haddad that he did not intend to leave the Department until the outcome of the restructure was known. I have referred to this conversation in [27] above. I do not accept, even on the applicant's version of that conversation, that Mr Haddad made a representation that the applicant should negotiate a starting date with Planning Workshop Australia on the expectation that he would be made redundant and entitled to a redundancy payment. 72 I do not accept the applicant's explanation, nor do I accept his evidence that, at the time that he had the discussions with Mr Haddad in October 2007, he had not committed in his own mind to commencing work with Planning Workshop Australia. His evidence about his reasoning process is inconsistent with what he had told others and is inconsistent with his communications with Planning Workshop Australia. 73 The situation which is revealed by the evidence, and which I find, is that as at October and November 2007 the applicant had committed himself to commencing work for Planning Workshop Australia, and had committed himself to leaving the employment of the respondent but was endeavouring in some way to negotiate a voluntary redundancy payment if he could. At that stage he was juggling the conflicting need to commence new employment and to leave his then current employment on terms that would involve a payment under the respondent's voluntary redundancy program. Furthermore, he knew at that stage that the making of a voluntary redundancy payment was a possibility only and that there was resistance on the part of his employer to making any such payment. 74 After proceeding on unpaid leave, the applicant did not return to work with the respondent. He took sick leave during January 2008 until he commenced employment with Planning Workshop Australia in February that year. 75 In support of his application for sick leave, the applicant gave the respondent two medical certificates from a medical practice in Newcastle which indicated that the applicant was unable to attend work for the period 7 January 2008 until 17 February 2008 inclusive because of "medical illness". 76 The applicant's medical records with that medical practice became part of the evidence in the proceedings. The clinical notes indicate that on 7 January 2008, the applicant told the attending medical practitioner that he was stressed, "not sure if will be made redundant" and related a number of symptoms reflecting his stressed state. Of course, at that date, the applicant knew that his chances of securing a voluntary redundancy payment were remote. When asked why he had told the doctor that he was not sure about whether he would be made redundant, the applicant indicated in his evidence that this was a symptom of his stressed state. 77 To the extent that this matter has any ultimate relevance in these proceedings, I would conclude that the evidence does not establish that the stress which the applicant was feeling at that stage and the pressure which was being placed upon him was as a result of his failure to negotiate a voluntary redundancy payment prior to him commencing work for Planning Workshop Australia or from what he regarded as the stressful circumstances of his employment by reason of his "mismanagement" by others. Such a conclusion would need to be sustained by expert evidence properly qualified. It is impermissible to rely only on a statement given by the applicant to his medical practitioner as establishing some medical condition. 78 Payslips tendered into evidence indicate that the applicant was actually paid for work performed by Planning Workshop Australia for a period of four weeks from 19 November to 14 December 2007 and from 11 February 2008. 79 In evidence, the applicant said that the receipt of payment by Planning Workshop Australia during the first period was a mistake on its part because he was not to be paid for any work performed during that period because he was still on the respondent's payroll. Nevertheless, he made no attempt ultimately to repay those monies. 80 In addition to the evidence which I have summarised above, affidavit evidence was also given by Jennifer Westacott, David Broyd, James Ryan and Neil McGaffin. I have not referred to that evidence specifically because, in my opinion, it is not relevant for the determination of the issues that need to be considered in these proceedings. 81 At [5] and [6] above, I have set out, respectively, the allegations made by the applicant directed to establishing the relevant unfairness and the issues agreed upon between the parties as requiring determination by the Court. 82 The allegations of unfairness refer, inter alia, to "the position occupied by the applicant" and "the applicant's position". 83 There are two senses in which one may refer to the position of the applicant. The first is a reference to the position in the organisation which he occupied. That was, at all material times, that of Regional Director. The second sense in which this word may be used is a reference to the personal position of the applicant by reference to the duties that he was personally required to perform and the obligations and responsibilities of his job which were personal to him. Obviously, a change in the nature of the position which the applicant occupied in the organisation would have consequential effects on his duties, obligations and responsibilities. However, as I have observed, at all material times the applicant occupied the position of Regional Director. That position did not change during the course of the applicant's employment with the respondent although, obviously, there was a change in the work that needed to be performed in that position and the consequential duties, obligations and responsibilities of the applicant. 84 Similarities can be drawn with the case of Jones v Department of Energy and Minerals (1995) 60 IR 304 where, although in that case the position was held to be genuinely redundant, Ryan J made some helpful comments regarding an employer's general right to reorganise the company structure.

However, it is within the employer's prerogative to rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. It is inappropriate now to attempt an exhaustive description of the methods by which a reorganisation of that kind may be achieved. One illustration of it occurs when the duties of a single, full-time, employee are redistributed to several part-time employees. What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the reorganisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant in the sense in which the word was used in the Adelaide Milk Co-operative case. (At p 308) Further, in Whittaker v Unisys Australia Pty Ltd [2010] VSC 9, Ross J, referring to Jones , held that the applicant's position was not made redundant because there remained duties to be performed, albeit that the responsibilities were now shared with another employee. 85 Before discussing whether the applicant has succeeded in his allegation of unfairness and in asserting his entitlement to relief under s 106, it is necessary to have regard to the context in which such a determination is to be made. 86 When determining matters of unfairness under s 106 and application of its provisions, it is clear that any value judgement exercised must be made on an objective basis having regard to, and reflecting, contemporary community values and standards. I have discussed my understanding of these matters in Schwartz v Central Sydney Area Health Service & Anor [2002] NSWIRComm 79 at paragraphs [71- 73] and [81- 82].

[71] It is a trite observation that a pre-condition for the exercise of any power under s 106 is a finding that the relevant contract is unfair. A helpful discussion as to the approach of the predecessor tribunals to this Court to the determination of whether a contract etc is unfair is contained within the joint judgment of Fisher CJ and Hungerford J in the Industrial Court of New South Wales Full Court in Baker v National Distribution Services Ltd (1993) 50 IR 254. At 271 their Honours said: "The test of unfairness within the meaning of s 88F of the Industrial Arbitration Act, and hence s 275 of the present Act, has received much attention by the Court and by the previous Industrial Commission over very many years, but, in our review of the cases, the approach stated by Sheldon J in Davies v General Transport Development Pty Ltd [1967] AR (NSW) 371 over 26 years ago has endured; his Honour commented (at 374) that unfairness of a contract or arrangement was to be determined according to 'the common sense approach characteristic of the ordinary juryman. … It is a plain matter of morals not law.' His Honour cautioned, however, (at 374,375) that the section's "massive power makes it imperative that it should be exercised with proper restraint … it should not permit itself to become a refuge for those who are merely disgruntled with a bargain entered into on even terms. … (T)he discretion should be exercised to protect victims of wrong dealing not to prescribe anodynes.' Those words by his Honour echoed what had been said earlier by Beattie J in Agius v Arrow Freightways Pty Ltd [1965] AR (NSW) 77 at 89 that it was a matter of deciding 'in each particular case by the application of the tribunal's common sense and sense of justice whether a particular transaction is unfair, harsh and unconscionable'.

The nature of the unfairness attracted by s 88F was considered later by the Industrial Commission in Court Session (Perrignon and Dey JJ, Cahill J dissenting) in A & M Thompson Pty Ltd v Total Australia Limited [1980] 2 NSWLR 1 at 13 as follows: 'It has been said that fairness is determined by the commonsense approach of a juryman and that it is a moral and not a legal issue ( Davies' case). Whether this be so or not, it does seem that in distinguishing between what is fair and what is not fair the Judge must apply standards which appear to him to provide a proper balance or division of advantage and disadvantage between the parties who have made the contract or arrangement. In doing so he would always have to bear in mind the conduct of the parties, their capability to appreciate the bargain they had made and their comparative bargaining positions when entering into the contract or arrangement.'" (at 271-2). [72] It is my understanding that in determining whether there is unfair conduct for the purpose of proceedings brought under s 106 and especially under sub s(2), the Court is required to exercise a value judgment reflecting contemporary community values. The contemporary values may be derived from the commonsense approach characteristic of the ordinary, reasonable, hypothetical 'standard' member of the community. Such a person will be neither an employer nor an employee, must be careful to weigh up the competing interests of the applicant as an employee and the respondent as an employer and those interests must be accommodated and viewed objectively and balanced within the context of the factual matrix which applies to them. Such a process will accommodate the reasonable requirements and understanding of an applicant as an employee and the reasonable requirements and understanding of a respondent as an employer in the context of the needs of the employer to undertake its activities in an efficient, effective and competent manner. [73] Of course the identification of contemporary community values is not without its own difficulties. Some insight as to the difficulties involved may be gained from the discussion by Professor John Braithwaite in the article entitled "Symposium on Community Values in Law" published in vol.17 of the Sydney Law Review at 351. Professor Braithwaite draws on a body of literature to make a distinction between community attitudes and community values, the former not necessarily assisting a court in determining a matter, the latter having much greater relevance. An obvious example of an attitudinal matter is the debate concerning abortion. The corollary and underlying value against which such debate is conducted is "respect for human life, health, freedom of choice".'

… [81] I have already referred to the process which is involved in determining whether a contract or arrangement etc or conduct is unfair. In the context of this process it is important to observe that there will be many cases where there is no absolute defining boundary which delineates what is fair from what is unfair. Often a range of conduct or activities may be said to fall within the limits of what is assessed to be fair, and, by corollary not unfair. This is because of the lack of absolute and scientifically determined criteria which differentiate the concepts of what is unfair. [82] The assessment which is to be made judged by the standard of the ordinary, reasonable, hypothetical "standard" member of the community is not capable of precise analysis and delineation. There will be a variety of opinions held by such a person. The exercise of a value judgment in these circumstances is obviously made more difficult, but it is a difficulty which is not confined to judges of this Court. By way of analogy, evaluations of what is 'reasonable' are made daily by judges in all courts determining claims based on breach of duty of care in negligence, and those brought under certain provisions of the Trade Practices legislation. 87 As I have observed, what is unfair will mean different things to different people, particularly if they are in some form of relationship whether it be one of employment, social or family. The applicant was obviously concerned with the diminution of the involvement of regional offices in the affairs of the respondent and the concentration of activity in the hands of the Minister and "head office". He found this to be unfair to him given his expertise, experience and professional standing as a planner. However, as I have set out above, whether something is unfair for the purpose of s 106 is to be determined objectively and must take into account the circumstances of both parties. The respondent, as an arm of government, was entitled to change the way in which it performed its statutory functions. The Minister, as a Minister of the Crown, was entitled to direct the respondent as to the way in which it carried out its activities, consistent always with the requirements of good government and statute. In this context, I observe that some of the changes about which the applicant complained had their basis in statute, that is, they reflected the will of the legislature. Our society seems to be visited with a great deal of change, much of it initiated by the legislature, whether federal, state or local. There will always be persons who are advantaged as a result of change and persons who are disadvantaged. However, the fact that individual disadvantage is a consequence of change does not, per se, render the impact on the individual as unfair when viewed objectively taking into account the totality of the context in which the individual operates. 88 The applicant submitted on the basis of the evidence given in the proceedings that:

[T]he changes which occurred in the organisational structures and distribution of duties were of sufficient significance to cause the position of Regional Director to be effectively redundant. … By at least 2007 he genuinely believed that he no longer had a meaningful role to play within the Department as a result of the changes to the role of Regional Director. Those changes were those which I have previously discussed, namely the Lower Hunter Regional Strategy, the LEP Review Panel, Part 3A of the Environmental Planning and Assessment Act and the Cities Taskforce. For the reasons that I have earlier given, I reject this submission. The evidence is that certain aspects of the applicant's duties and responsibilities changed, but nevertheless he remained as the Director of a regional office, which continued to have significant responsibilities for the administration of the respondent and the implementation of the respondent's policies and strategies. To the extent that the applicant was dissatisfied, his dissatisfaction was directed more to what he perceived was the centralisation of control within head office and certain concerns that he had about the transparency of certain processes. This is not sufficient, however, to justify a conclusion that in some way the applicant's position had become redundant. 89 I have, during the course of my reasons for judgment, drawn a number of conclusions about the impact of the various matters to which the applicant has referred on the work that he performed as Regional Director. Whilst I accept, as I have now said on a number of occasions, that there have been changes and that the applicant's influence was diminished, I do not accept on the basis of the evidence and the conclusions to which I have come that his position had become so altered and, in effect, so emasculated that I could conclude that it was, in effect, the subject of such change as would justify the Court in concluding that it was redundant to the extent that a redundancy payment should be ordered to be made to the applicant. Obviously, no attempt has or could reasonably have been made by the parties to make some form of quantitative and qualitative assessment of the changes that were rendered to the applicant's position. The applicant's case was based on his own views about what had happened and the impact of the changes upon him. He was obviously disappointed at his loss of influence and about the diminished contribution that he and his office would make to what he saw as significant issues. He was also obviously disappointed about some of the decisions that were made at head office and Ministerial level. The respondent, on the other hand, although readily conceding the changes that had been made was of the view that there was nevertheless meaningful and responsible work to be undertaken by each of the regional offices and their Directors. Ultimately, it is for the applicant to demonstrate that the changed circumstances warranted the intervention of this Court by the making of orders under s 106 of the Act. I am not satisfied that the applicant has demonstrated, on the basis of all of the evidence given in the proceedings, that such intervention is warranted. 90 The applicant also submitted that his position in fact became redundant. In order to deal with this submission, I refer again to the evidence that I have previously set out at [33] to [39] above. The applicant tendered his resignation by letter dated 4 February 2008 giving 14 days' notice of cessation of duties effective from 18 February 2008. Whilst the Director General had previously announced that he was considering a reduction in the number of regions, no formal announcement was given until 20 February 2008, two days after the applicant's employment had terminated. There is no evidence of any kind to the effect that there was any certainty that the applicant would be declared excess to the staffing requirements of the respondent as at the date that he tendered his letter of resignation and, indeed, as at the date that his resignation from employment took effect. There is no evidence that the applicant resigned his employment because of any concern that either he or his position would be made redundant. To the contrary, the evidence is that the applicant had been desirous of leaving the employ of the respondent and commencing work with Planning Workshop Australia for some considerable time. The only reason why he delayed any change in employment was in an endeavour to secure a voluntary redundancy payment. 91 In the same vein, there is no evidence to suggest that in any way the respondent conducted itself in such a manner as to cause or put pressure upon or influence the applicant to terminate his employment, whether directly or indirectly. 92 On the basis of the conclusions which I make, I now return to the issues identified by the parties set out earlier in [6] of these reasons for judgment. I answer each of subparagraphs 1, 2 and 3 in the negative. 93 Of course, the ultimate issue is whether the contract between the applicant and the respondent was unfair for the purposes of s 106. The contract may be or may become unfair by reason of its provisions or because of some omission to deal with a particular matter. I am unable to identify any provision of the applicant's contract of employment that would render it unfair for the purposes of s 106. There is no evidence that it contained any provision covering any circumstances in which the applicant may become redundant. Even if this omission to include such a provision could be considered to create any such unfairness, there is no evidence that the applicant's position became redundant, either as a matter of fact, or because of the circumstances surrounding the termination of his employment. On the evidence, the applicant initiated the termination of his employment at a time when his position was in tact. Such circumstances, which occurred without any indication of pressure or influence by the respondent, preclude any finding that the contract of employment was in some way unfair as asserted by the applicant. Accordingly, the applicant having failed to make out a case, the proceedings should be dismissed. 94 The applicant conceded in submissions that, if he were unsuccessful in the proceedings, there is no reason why an appropriate costs order should not be made. Orders

95 I make the following orders: 1. The amended summons for relief is dismissed. 2. The applicant is to pay the costs of the respondent in an amount assessed in default of agreement.

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