Jessup J
1 This is an appeal from an order made by a single Judge of the court on 11 December 2014, whereby his Honour dismissed the application of the appellant, National Tertiary Education Union, for declarations, penalties and injunctions in respect of what was alleged to be a contravention of cl 74 of the La Trobe University Collective Agreement 2014 ("the 2014 agreement") on the part of the respondent, La Trobe University. The primary Judge's order gave effect to reasons which his Honour had published on 8 December 2014, and it was by reference to those reasons that the appellant sought to establish error of the kind that should be corrected on appeal.
2 In dealing with the appellant's challenge to those reasons, it is necessary to commence with the procedural history of the matter that came before his Honour for adjudication. The appellant filed its Originating Application on 19 November 2014. It sought a declaration that, by terminating, or proposing to terminate, the employment of employees by way of compulsory redundancy, other than as a last resort, the respondent contravened s 50 of the Fair Work Act 2009 (Cth) ("the FW Act"). It sought the imposition of a pecuniary penalty on the respondent for each contravention of s 50, and a permanent injunction to restrain the respondent from terminating the employment of any employee by reason of compulsory redundancy pursuant to a restructuring program which the respondent had proposed, other than in accordance with cl 74 of the 2014 agreement. The appellant also sought interlocutory orders that its Originating Application be heard and determined before 17 December 2014.
3 In its Statement of Claim, the appellant alleged that, on or about 9 October 2014, the respondent had announced that it was proceeding to implement the proposed restructuring. A consequence was that some 280 employees were to have their employment terminated by reason of redundancy. Of those 280, 180 had expressed interest in leaving their employment, and 100 were to have their employment terminated by compulsory redundancy.
4 The balance of the Statement of Claim, paras 18-24, should be set out in full. They provided as follows:
18. As to the professional staff, La Trobe:
(a) has not implemented a general voluntary redundancy program;
(b) has not permitted all employees in professional positions to express an interest in accepting a voluntary redundancy package; and
(c) has refused to accept expressions of interest from employees seeking to voluntary [sic] cease employment with La Trobe.
19. By reason of the matters set out in paragraph 18, in relation to the professional employees, La Trobe:
(a) used, is using, or intends to use, compulsory redundancies other than as a last resort;
(b) failed to ensure that redundancies were avoided wherever possible; and
(c) failed to make reasonable attempts to mitigate against compulsory redundancies and to avoid job losses.
20. By reason of the matters set out in paragraph [sic] 18 and 19 above, La Trobe contravened, and continues to contravene, section 50 of the FW Act.
21. As to its academic staff, La Trobe has, variously:
(a) not offered a general voluntary redundancy program;
(b) directly selected a number of employees for compulsory redundancy without first considering voluntary redundancies and/or permitting the selected employees to apply for positions in the new structure; and/or
(c) implemented a 'spill and fill' process in the terms pleaded in paragraph 23 [sic] below.
22. In relation to the 'fill and spill' process pleaded in paragraph 21(c) above, La Trobe has:
(a) directly appointed some employees to positions in the new structure;
(b) called for expressions of interest in early departure from, and only from, the pool of employees not directly appointed to a position in the new structure and whose substantive position is affected by the Implementation; and
(c) implemented a competitive selection process for employees not directly appointed to a position in the new structure, including employees who have expressed interest in leaving the employ of La Trobe; and
(d) refused to accept expressions of interest from some of the pool of employees who have expressed interest in voluntarily leaving the employ of La Trobe.
23. By reason of the matters set out in paragraph 22 and 23 [sic] above, in relation to the academic employees, La Trobe:
(a) used, is using, or intends to use, compulsory redundancies other than as a last resort;
(b) failed to ensure that redundancies were avoided wherever possible; and
(c) failed to make reasonable attempts to mitigate against compulsory redundancies and to avoid job losses.
24. By reason of the matters set out in paragraph 22-24 above, La Trobe contravened, and continues to contravene, section 50 of the FW Act.
5 The provision under which the appellant sued, s 50 of the FW Act, provides that "[a] person must not contravene a term of an enterprise agreement." The 2014 agreement was an enterprise agreement within the meaning of this section. In turn, the provision of the 2014 agreement which, according to the appellant, the respondent contravened was cl 74, as follows:
The University is committed to job security. Wherever possible redundancies are to be avoided and compulsory retrenchment used as a last resort. The University reserves the right to use the agreed redundancy procedures and provisions set out in this Agreement when all reasonable attempts to mitigate against such action and to avoid job loss have been unsuccessful.
6 The proceeding was mentioned before the primary Judge on 21 November 2014. At that time, it became apparent that there was significant disagreement between the parties as to the nature and volume of evidence which would need to be called at trial. The appellant's position was that it could make good its case by presenting evidence about the processes which the respondent had put in place to deal with redundancies, while the respondent's position was that it would be necessary to examine separately its treatment, or proposed treatment, of each of the employees whose positions had become redundant.
7 In these circumstances, it was agreed that it would assist the conduct of the proceeding if the court were to determine, as a preliminary question, whether, on its true construction, cl 74 of the 2014 agreement imposed any, and if so what, binding obligation on the respondent. It was that question which was subsequently debated before the primary Judge, and which was answered in the negative in his Honour's reasons of 8 December 2014. That answer made the dismissal of the proceeding itself inevitable, which was done by the order made on 11 December 2014.
8 Against that procedural background, it is convenient to turn next to the provisions of the 2014 agreement.
9 The agreement is divided into eight lettered parts, namely:
PART A ABOUT THIS AGREEMENT
PART B EMPLOYMENT UNDER THIS AGREEMENT
PART C SALARIES AND CLASSIFICATION
PART D ALLOWANCES
PART E WORKING HOURS
PART F LEAVE PROVISIONS
PART G CONSULTATION AND CHANGE
PART H TERMINATION AND DISCIPLINE
10 There are four clauses in Part G of the agreement, namely:
71. DISPUTE SETTLING PROCEDURES
72. GRIEVANCE PROCEDURES
73. MANAGING CHANGE
74. JOB SECURITY
As noted above, it was cl 74, "Job security", which was the subject of the primary Judge's decision of 8 December 2014.
11 Part H of the agreement consists of the following clauses:
75. TERMINATION & NOTICE
76. REDUNDANCY PROCEDURES
77. DISCIPLINARY PROCEDURES
78. INDEPENDENT CHAIRS
79. RESEARCH MISCONDUCT
80. ILL-HEALTH RETIREMENT
81. REDEPLOYMENT OTHER THAN REDUNDANCY
As will be apparent from the heading, cl 76 of the 2014 agreement also assumed some importance in the hearing before the primary Judge.
12 Clause 73 of the 2014 agreement, "Managing change", deals with the general subject first introduced into federal awards as a result of the decisions of the Australian Conciliation and Arbitration Commission made on 2 August and 14 December 1984 in the Termination, Change and Redundancy Case (1984) 8 IR 34 and 9 IR 115, 126-128. In addition to requiring the respondent to consult with the affected employees and the relevant trade unions with respect to changes that may have significant impact upon employees, cl 73 includes the following provisions:
73.8 Vacant positions arising through organisational change will, where possible, be filled by redeployment of existing staff whose positions become redundant.
73.9 For the avoidance of doubt, the redeployment process does not preclude reasonable interview or assessment to determine whether the position is a suitable vacant position or competitive merit based selection where there are multiple staff seeking redeployment.
13 The terms of cl 74 of the 2014 agreement are as set out in para 5 above.
14 Clause 76 of the 2014 agreement, "Redundancy procedures", is lengthy and detailed. So far as its provisions may shed some light on the proper construction of cl 74, they include the following:
76.1 This Clause shall:
(a) apply to academic and professional employees in continuing positions who are covered by this Agreement;
(b) not apply to casual employees, employees employed on fixed-term contracts, Research Continuing employees or employees employed pursuant to Clause 37 (Senior Staff Performance Based Contract) of this Agreement;
(c) not detract from the obligations of the University to consult pursuant to Clause 73 (Managing Change) of this Agreement; and
(d) allow employees to be assisted by a Representative at every stage during the procedures set out in this Clause.
76.2 The University will actively seek to redeploy any employee who may be notified of potential redundancy to a suitable vacant position.
Grounds for Redundancy
76.3 Where the University has decided to terminate the employment of one or more employee(s) for reasons of an economic, technological, structural or similar nature, including:
(a) a decrease in student load in any course or subject on any campus;
(b) a decision to cease offering or to change the academic content of any course, subject or unit, or to cease support of a research area on any campus;
(c) financial exigency in an organisational unit or cost centre;
(d) where the position is no longer required as a result of changed work methods, reorganisation, financial exigency, or the application of technology; and/or
(e) where the duties of the position are changed to such an extent that the incumbent is no longer competent to perform those duties,
the University will formally notify the affected employee(s), and their Representatives, in writing that their employment will terminate, the reason(s) for the termination, and the proposed date of cessation of employment.
Where the University is required to provide a notification pursuant to s.530 of the FW Act, a copy will also be provided to the relevant Unions together with a copy of the template letter sent to affected staff.
….
Redeployment
76.5 When the University has formally notified an employee of a proposed date for redundancy, there will be an 8 week redeployment period from the date of receipt of the written notice.
76.6 By the expiration of ten (10) working days from the commencement of the redeployment period, the employee must advise in writing to the Executive Director (Human Resources), whether they wish to:
(a) apply for early separation and include the balance of the redeployment period in his or her redundancy benefits; or
(b) seek redeployment within the University.
76.7 Where the University seeks to redeploy an employee, or the employee who may be facing potential redundancy seeks redeployment, the University shall (taking into account the relevant skills, experience and work preferences of the employee):
(a) examine options for retraining;
(b) examine measures that could be taken to avoid termination;
(c) arrange counselling (which may also include assistance such as financial advice, outplacement services and resume preparation) for the employee as required and allow reasonable time off work to attend interviews;
(d) monitor all vacancies within the University;
(e) offer the employee redeployment to a suitable vacant position where such a position exists;
(f) at the request of the employee, or his or her Representative, consult with the employee regarding (a) to (e) above.
76.8 Suitable vacant position means a position at the same classification level and same or equivalent time fraction of the employee and for which the employee has the skills and qualifications to undertake. A reasonable amount of time may be taken into account, if an employee needs to update skills and experience to undertake the duties of the position, but this will not normally be greater than six (6) months.
76.9 At the employee's initiation and request, the University may agree to redeploy the employee to a position at a different classification level and/or different campus. In such cases, if the employee does not agree to proceed with the redeployment, it will not be considered as a rejection of a·reasonable offer of redeployment.
76.10 If redeployment is, by agreement, to a lower classified position then a staff member who is redeployed pursuant to this Clause shall have salary, and where possible entitlements accrued under this Agreement, maintained for the following periods:
(a) employees who have been in the classification prior to redeployment for less than 12 months: 6 months salary maintenance;
(b) employees who have been in the classification prior to redeployment for 12 months or greater: 12 months salary maintenance.
76.11 Redeployment pursuant to this Clause to a lower classification level shall be to the highest incremental point within that classification level.
76.12 Other than as stated in this Clause, this Clause does not restrict the right of the University to transfer an employee to another position at their same classification level at the campus at which the employee is based.
Application for Early Separation Severance Benefit
76.13 Where an employee who has been given notice pursuant to sub-clause 76.3 has applied for early separation, the University shall not unreasonably refuse such an application and where accepted by the University, the employee will be entitled to include the balance of the redeployment period in his or her redundancy benefits, in which case the employee will receive upon termination:
(a) the unexpired portion of the eight (8) week redeployment period (if any) as part of the genuine redundancy payment; and
(b) the notice period prescribed in sub-clause 76.4 as part of the genuine redundancy payment; and
(c) payment of pro rata Long Service Leave pursuant to Clause 65 (Long Service Leave).
15 Before the primary Judge, the respondent's principal contention was that cl 74 imposed no binding obligation on it. Rather, the clause amounted to no more than a series of aspirational or hortatory statements. Alternatively, the respondent submitted that any obligation arising under the clause was to be found in the third sentence, which required that the respondent could not have resort to the agreed redundancy procedures in the 2014 agreement until it had made all reasonable attempts to mitigate against such resort and to avoid job losses. On either view, cl 74 did not require the respondent to implement a voluntary redundancy scheme or to offer voluntary redundancies to particular employees; and it did not dictate the basis on which staff might be selected for termination of employment on redundancy grounds.
16 By contrast, the appellant accepted that the first sentence of cl 74 could be characterised as aspirational, but maintained that the second and third sentences, when read together, imposed obligations on the respondent. The third sentence emphasised the mandatory nature of the second sentence by making it plain that the respondent could not exercise its reserved right unless and until the asserted obligations prescribed by the second sentence had been satisfied.
17 The primary Judge accepted that the reference in the third sentence of cl 74 to the "agreed redundancy procedures" was a reference to the procedures in cl 76. His Honour noted that there had been some debate before him as to whether cl 76 applied only to compulsory redundancies or whether it also applied to "voluntary redundancies". His Honour adverted to the two senses in which the word "redundancy" might be understood, namely, the conventional industrial relations sense of an employee's job becoming redundant and the looser, but nonetheless often encountered, sense of a particular employee being dismissed from his or her employment on account of a redundancy in the former sense. As to the latter sense, his Honour noted that it was not uncommon, in industrial parlance, to encounter references to "voluntary redundancy" and "compulsory redundancy" where what was being referred to was a termination of employment following a redundancy.
18 The primary Judge held that it was in the former, or conventional, sense that the word "redundancies" was used in the second sentence of cl 74 of the 2014 agreement. But his Honour had a difficulty with the meaning of the words "such action" in the third sentence. He said:
One possibility is that they refer to the avoidance of redundancy and resort to compulsory retrenchment - matters mentioned in the second sentence. Alternatively, the action referred to might be the use of the procedures contained in Clause 76. Either way confusion arises. Given that compulsory retrenchment is effectively rendered the last resort by the provisions of Clause 76 the first possibility would effectively require the University to do some or all of the things prescribed by Clause 76 before invoking it. The alternative construction also gives rise to difficulty: while it makes sense to qualify the University's right to invoke Clause 76 until all reasonable attempts to avoid the need to do so have been taken, it is less clear how reasonable attempts to avoid job loss can be a necessary precursor to resort to Clause 76 when Clause 76 itself provides for processes such as redeployment and retraining in order to avoid job losses.
19 The primary Judge then moved to cl 76 itself, holding that the terminological problems to which he had referred were there "compounded". His Honour took the view that, for the most part, the word "redundancy" was used in cl 76 as a reference to termination of employment, but that this was not a consistent usage.
20 His Honour next dealt with some previous authority to which he had been referred by the appellant - National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139 and National Tertiary Education Industry Union v Victoria University [2014] FWC 7711 - but held that those cases provided no support for the appellant's constructional argument.
21 His Honour considered, and rejected, a submission made on behalf of the appellant that an examination of the 2014 agreement as a whole disclosed that all the aspirational statements were concentrated in Part A, and that Part G, in which cl 74 appeared, contained only prescriptive provisions. An argument advanced by the appellant based upon a much earlier, corresponding, agreement was also rejected.
22 The main deliberative section of his Honour's reasons was expressed as follows:
Despite having made due allowance for the factors which require a benign construction of industrial instruments, I am not persuaded that the second and third sentences of Clause 74 of the Agreement, either separately or collectively, impose obligations on the University. As already noted, the second sentence does not, expressly, refer to the University. Nor does it contain any words of obligations such as "will" or "shall" which are employed elsewhere in the Agreement to impose obligations on the University: see, for example, Clauses 63.11(c), 67, 72.18, 73.2, 73.4 and 73.5. The second sentence of Clause 74 does no more than provide aspirational particulars of the aspirational commitment made in the first sentence.
This conclusion is not changed by a reading of the second and third sentences in conjunction. The third sentence records a reservation by the University of its right to resort to Clause 76. The need for such a reservation is unclear given that the University was entitled to use Clause 76 even had such reservation not been made. The apparent intention of the reservation was to provide some general comfort to employees, in the event of redundancies occurring, by recording the University's policy that compulsory termination of service would only occur after other less drastic measures had been explored. For reasons which I have already explained …, the terms in which the reservation is expressed are ambiguous. Moreover, the words lack precision and practical effect. They do not, for example, stipulate for how long the University will pursue alternative options (some of which are already provided for in Clause 76) before invoking Clause 76.
23 The appellant's grounds of appeal, as expressed in its Notice of Appeal as amended during the hearing of the appeal, were the following:
1. The learned trial judge erred in concluding (Reasons at [18]) that Clause 74 of the La Trobe University Collective Agreement 2014 imposes no binding obligations on the University, and contains no more than aspirational or hortatory statements.
2. The learned trial judge erred in failing to conclude that Clause 74 of the La Trobe University Collective Agreement 2014 imposes binding obligations on La Trobe University that are capable, depending on the facts to be found, of prohibiting the conduct alleged in paragraphs 21 and 22 of the Statement of Claim dated 19 November 2014.
3. The learned trial judge erred in failing to have regard to evidence adduced at trial in relation to the common understanding of the parties with respect to the operation of Clause 74.1 of the La Trobe University Collective Agreement [2014] as set out in the agreed minutes of a meeting held on 2 May 2013, (Exhibit 1) which recorded the negotiating parties' common understanding of the previous iteration of Clause 74 (Clause 69 in the La Trobe University Collective Agreement 2009), to the effect that redundancy is the "last resort", and that notice of redundancy is only to be given after the option to redeploy has been exhausted.
4. The learned trial judge erred in concluding (Reasons at [43] - [44]) that there was no evidence in relation to the reason for which the parties agreed to include a sunset clause limiting the operation of a previous iteration of the Job Security Clause (at that time found in Clause 14 of the La Trobe University Enterprise Bargaining Agreement [2001]) in circumstances where there was in fact evidence adduced at trial that:
a. In 2001, Clause 69 of the Agreement contained the same text as now appears in Clause 74 of the La Trobe University Collective Agreement [2014], but with the addition of a "sunset" clause, which provided that the then Clause 14 would cease to operate as at the nominal expiry date of the 2001 Agreement;
b. The Affidavit of Mary Bernadine Martin (at paragraphs [25] to [26]) confirmed that the sunset clause was included in Clause 14.3 during negotiations for the 2001 Agreement by reason of the University's insistence on the job security provisions having a time limit on their period of operation.
5. The learned trial judge erred in having regard (Reasons at [48]) to the failure by the Applicant to make application to the Fair Work Commission pursuant to section 217(1) of the Fair Work Act 2009 (Cth) to vary the La Trobe University Collective Agreement [2014], despite the fact that the failure by a party to pursue a potential alternative or additional remedy in another jurisdiction is not relevant to the court's consideration of the correct interpretation of an enterprise agreement.
6. The learned trial judge erred in concluding (Reasons at [46]) that the purpose of the reference within the text of Clause 74 to the processes provided for in Clause 76 is merely to provide "some general comfort" to employees. His Honour erred in failing to find that the reference to Clause 76 in the final sentence of Clause 74 has the effect of confirming that the provisions in Clause 76 only come into play when it is clear that it is impossible to avoid making positions redundant, and that the condition of "last resort" has been satisfied.
24 Before turning to a consideration of these grounds as such, something should be said about the procedure that was followed in this case. While I recognise the pressing circumstances that attended the resolution of the controversy raised by the appellant's application, and while I am fully sympathetic with the streamlined approach taken by the primary Judge with the assent of the parties, it must be said that this approach, and the outcome of which the appellant now complains, were problematic in some respects.
25 His Honour treated the matter before him as the hearing and determination of a separate question pursuant to Div 30.01 of Pt 30 of the Federal Court Rules 2011 (Cth). But no specific order for such a procedure was actually made. This omission, which in some quarters might be regarded as the merest technicality, had the result that neither party, it seems, came squarely to grips with the implications, or the consequences, of the task upon which the court was embarking. As mentioned above, his Honour gave informal expression to the separate question in his reasons, being whether cl 74 of the 2014 agreement imposed any, and if so what, binding obligation on the respondent. His negative answer to that question, although binding only on the parties, provided a judicial precedent applicable to all situations. By the procedure employed, the respondent persuaded the court to make a general ruling about the operation of cl 74 which was restricted neither to the facts alleged by the appellant in its Statement of Claim nor to the controversy existing between the parties.
26 It is for this reason that I have set out, in para 4 above, paras 18-24 of the Statement of Claim. During the running of the appeal, it became clear that the gravamen of the appellant's concern was that the respondent had embarked upon its program of restructuring, with the attendant prospect of redundancies (in both of the senses referred to above) without first calling for volunteers from the broad cohort of employees engaged in the positions that stood to be affected, or similar positions. That cl 74 operated as a positive requirement binding the respondent to call for volunteers in this way as a preliminary to entering the arena regulated by cl 76 of the 2014 agreement is a proposition which I would, for my own part, find very difficult to accept. But, in the proceeding before the primary Judge, the respondent relied neither upon s 31A of the Federal Court Act 1976 (Cth) nor upon r 16.21(1)(e) of the Rules. The result, as I say, was that his Honour was led to decide not only that the appellant's case as framed could not succeed under cl 74, but that cl 74 imposed no binding obligation on the respondent in any circumstances.
27 These reservations about the procedure that was followed before the primary Judge must, however, be put to one side. That procedure was assented to by both parties, and no complaint was made about it by either of them in the present appeal. The only issue for us to decide is whether his Honour was in error, in the respects mentioned in the Notice of Appeal, to have held that cl 74 of the 2014 agreement imposed no binding obligation on the respondent.
28 The appellant's generally-expressed first ground of appeal comes squarely to grips with that issue. The appellant accepted that the first sentence of cl 74 imposed no binding obligation. The third sentence is expressed as a limited reservation of a right, and there is no reason, in my view, not to understand it in this sense. As so understood, the third sentence qualifies, to an extent, what precedes it in the second sentence. It is in that sentence (ie the second) that, on the appellant's submission, one finds the obligation that is binding on the respondent. For reasons which follow, that submission should be rejected.
29 In his reasons of 8 December 2014, the primary Judge referred to the approach to be taken to the construction of industrial instruments, such as awards and collective agreements, in terms which were not the subject of criticism by the appellant. His Honour said:
The canons of construction which are applied to industrial awards and agreements are well known and were accepted by the parties in the present proceeding. The starting point is necessarily the text of the provision. It will not be read pedantically and due allowance will be made for the likelihood that the authors are industrial relations practitioners without legal training who have been striving to find a practical solution to disputed issues. Due allowance will also be made for the fact that the parties may choose to use terminology which has a well understood meaning in the industrial relations arena but might otherwise be regarded as lacking precision: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J) which was quoted with approval by two members of the High Court in Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at 271 (Kirby J), 282-3 (Callinan J). The provision falls to be construed in the context of the agreement as a whole or other relevant provisions of it and having regard to the legislative background against which the agreement was made and in which it operates: Amcor at 253 (Gummow, Hayne and Heydon JJ).
30 While this broad framework for the construction of industrial instruments may be accepted as applicable to the task which confronted the primary Judge, there is an important distinction between awards and orders, on the one hand, and enterprise agreements, on the other hand, which should be noted at this stage. Awards and orders contain the commands, rules and injunctions of a public body authorised to impose upon non-consenting parties a resolution of whatever dispute, issue or proceeding had been before it. There is every reason to approach the reading of such an instrument with a disposition to finding a binding obligation, or the establishment of a substantive entitlement, in each of the operative provisions thereof. Enterprise agreements, by contrast, are the doings of the parties themselves (here using the term "parties" in the loose sense of the employer and those of its employees who, through their bargaining representatives, were involved in the relevant negotiations). Although the content of enterprise agreements is heavily regulated by the provisions of Divs 4 and 5 of Pt 2-4 of the FW Act, there is nothing, so far as I can see, to prevent the parties from including in their agreement provisions or expressions which involve no obligations at all. Indeed, the admixture in industrial agreements of provisions which give rise to obligations and those which are merely "aspirational" is a practice of long standing: see, by way of a well-known example, the argument advanced on behalf of the defendant union in Ford Motor Co Ltd v Amalgamated Union of Engineering and Foundry Workers [1969] 2 QB 303, 330. That the parties to an enterprise agreement have included aspirational or hortatory provisions in their document should be no source of surprise. Neither should there be any a priori assumption that the parties are unlikely to have included a provision which involved the establishment of no concrete entitlement or binding obligation.
31 Turning to the second sentence in cl 74 of the 2014 agreement, the terms there employed do not, in my view, naturally set up a binding prohibition or embargo, even ignoring - which I do not believe we may - the two opening words. The primary Judge took the view that the reference to "redundancies" in this sentence was a reference to redundancies in the conventional sense, and the appellant took no issue with that approach. The expression "compulsory retrenchment", on the other hand, is clearly a reference to the non-consensual termination of the employment of a particular employee by the respondent. Grammatically, it is possible to slice this sentence into these two sections, and to read each as conveying a prohibition. So to proceed, in my respectful view, would be to change the sense of the sentence as a whole. That sense is one of a very high-level statement of intent, concerned with making clear the importance which the parties placed on job security. In an industrial relations context, there is absolutely no reason not to respect the parties' choice to include a provision of this nature in their agreement, nor to deprecate the significance of the provision on account of its non-obligatory nature.
32 If one does look more closely at the component parts of this second sentence, again one finds words which, as the primary Judge pointed out, are not obviously those of obligation. The grammatical form "are to be avoided" does not naturally convey prohibition. Rather, it is a form most often used in the context of an advice or warning: fatty foods are to be avoided, strenuous exercise is to be avoided, etc. Likewise, use of the grammatical form "as a last resort" implies that other measures are, or might be, available as places of earlier resort: a process which comes to its unwanted conclusion at the point where some decision-maker - here, the respondent - decides that none of those other places is available. Objectively, that the parties might have intended that the imprecise evaluations and qualitative judgments conveyed by these words should be the source of binding obligations ultimately justiciable in a proceeding such as that which came before the primary Judge strikes me as a very unlikely circumstance. That conclusion is, if anything, reinforced by the presence of the governing phrase at the start of the sentence "wherever possible".
33 The next consideration, in my view, which counts against the appellant's case under its first ground is one which carried much force with the primary Judge. That case would have it that cl 74 provided, in effect, a gateway through which the respondent had to pass before being able to rely on cl 76. But the latter contained such a detailed and prescriptive regime of protections, and alternatives, for an employee who was facing retrenchment because his or her job had become redundant as to make it most unlikely that the parties intended that, before even commencing to operate under it, the respondent was obliged to demonstrate that compulsory retrenchment was a last resort. Those alternatives included redeployment, retraining and the examination of suitability for appointment to vacant positions. If the appellant's argument is correct, it is difficult to see how such expedients would not be regarded as places of earlier resort for the purposes of the second sentence in cl 74.
34 In arguing the appeal, senior counsel for the appellant proposed that cl 76 made no provision requiring the respondent to call for volunteers from the cohort of relevant employees whose jobs had not become redundant but who might wish to be made "redundant" in place of those whose jobs had. It is true that cl 76 makes no such provision. But here one encounters a further problem with the construction of the second sentence in cl 74 for which the appellant contends, namely, the problem of content. What is here proposed is that this sentence, albeit expressed in the negative, should be so construed as to give it a practical operation requiring the respondent to take measures that could have been, but were not, the subject of express, and clear, agreement. What the provisions of cl 76 do make obvious is that the parties turned their minds to the potential for redeployment to avoid what would otherwise be the natural, but unwanted, consequences of the redundancy of an employee's job, but confined their chosen measures to situations in which there was a suitable vacant position into which the affected employee might be redeployed. That the parties intended that the second sentence in cl 74 would perform service to enlarge the respondent's redeployment obligations to situations in which there were no relevant vacancies, and to provide employees whose jobs were not redundant with the opportunity to quit their employments under redundancy terms, is, in my view, a proposition which derives no support from the terms of the clause or from the context in which it appears in the agreement.
35 For the reasons I have given, I would reject the appellant's first ground of appeal.
36 To the extent that the second ground of appeal differs from the first, it seems to involve the proposition that the primary Judge ought to have treated the matter before him as, in effect, a test of the sufficiency of paras 21 and 22 of the Statement of Claim to found a cause of action based upon an allegation of a contravention of cl 74 of the 2014 agreement. Had this been the nature of the case run before his Honour, I have no doubt but that he would have dealt with it as such, and the criticisms which I have expressed above about the way things were done at that level would not have been available. But it was not the nature of either party's case. Counsel for the appellant confirmed that this ground of appeal raises a point which was not advanced below. For that reason alone, I would reject it.
37 There is, however, a further reason why the second ground should be rejected. On any view the first ground is the appellant's most comprehensive one. But the second ground cannot be understood as being advanced in the alternative to the first. Absent success on the first ground, the appellant would have nowhere to go: the primary Judge's ruling that cl 74 imposed no obligation at all would stand. The relationship between that clause and paras 21 and 22 of the Statement of Claim would be neither here nor there. On the other hand, if the appellant succeeds on the first ground, as I consider it should not, it would be for the respondent to submit that, as a kind of fall-back position, his Honour should at least have concluded that paras 21 and 22 disclosed no reasonable cause of action under cl 74. But the respondent has filed no Notice of Contention in that regard: indeed, counsel for the respondent resisted the idea that the court should allow the amendment to the Notice of Appeal that brought this second ground into its current terms.
38 In the result, I take the view that the appellant's second ground of appeal provides no legitimate basis for discerning error in the reasons of the primary Judge, and should be rejected.
39 The appellant's third ground of appeal refers to a meeting between representatives of itself and of the respondent on 2 May 2013. This was part of the negotiation for a new agreement which became the 2014 agreement. The minutes recorded that the representatives of the appellant queried the job security clause in the then existing agreement and the provision in the FW Act regarding the meaning of genuine redundancy. They referred to a staff member who had a viable redeployment option to a position for which funding was available: 2/3 in the year in question and 1/3 in the second year. In response, the representatives of the respondent clarified that the job security clause set out that redundancy was the last resort. They said that efforts were made to redeploy the staff member referred to prior to giving him or her (it is not clear which) the notice of redundancy. They advised that the notice of redundancy was only given once the option to redeploy had been exhausted, and where staff elected to be redeployed, attempts were continued to be made up to the cessation date.
40 Far from bespeaking any "common understanding" as to the construction of the provision of the previous agreement with which cl 74 of the 2014 agreement corresponded, it is not at all clear that the minutes of the meeting on 2 May 2013 disclose a discussion about the terms of that clause at all; or least that they disclose a discussion which was confined to that clause. The latter part of the discussion, that in which representatives of the respondent made their most substantial contribution, appears, rather, to have been focussed on the predecessor to cl 76, particularly on cl 76.5 and the provisions which followed.
41 Whatever the content of the principle that, in construing an industrial agreement, the court may take account of "common understandings", I take the view that the present is a very poor example of a situation in which that principle may have something useful to say. On the facts, the material to which our attention has been directed discloses no common understanding with respect to any subject that was of concern to the primary Judge. I would reject the appellant's third ground of appeal.
42 The appellant's fourth ground of appeal takes issue with the following passages in the reasons of the primary Judge:
The NTEU also placed some reliance on an earlier version of Clause 74. Clause 14.3 appeared in the La Trobe University Enterprise Bargaining Agreement 2001. It provided that:
"Wherever possible redundancies are to be avoided and compulsory retrenchment used as a last resort. The University reserves the right to use the agreed redundancy procedures and provisions set out in this Agreement when all attempts to mitigate against such action, to avoid job loss has been unsuccessful. This sub-Clause shall cease to have effect upon the nominal expiry date of this Agreement."
The NTEU argued that the final sentence would not have been necessary had the earlier provisions not had coercive effect. It may reasonably be assumed that this "sunset" provision was intended to have some effect on the relative positions of the parties if a new agreement had not been negotiated before the nominal expiry date of the 2001 Agreement. There was, however, no evidence about the reason or reasons the parties agreed to incorporate the final sentence in Clause 14.3 or of any mutual understanding of its meaning and effect. In these circumstances it is not possible to conclude that its purpose and effect was to relieve the University of any obligation.
43 Before the primary Judge, there was evidence as to provenance of the final sentence in what became cl 14.3 of the 2001 agreement. The appellant caused to be read the affidavit of Mary Bernadine Martin, a senior lecturer in the Department of Computer Science and Computer Engineering. She said that, at a negotiating meeting for that agreement, a representative of the respondent insisted that the job security clause then under consideration - the provision that became cl 74 of the 2014 agreement - have a limitation on its period of operation: a "sunset clause" as such things are called. The respondent would not accept a job security clause that did not cease to operate at the nominal expiry date of the agreement. The appellant rejected that demand. The evidence does not disclose the reasons why, or the circumstances under which, the appellant ultimately acceded to the demand, but, as history shows, accede it must have.
44 The primary Judge was, therefore, correct to observe that there was no evidence "about the reason or reasons the parties agreed to incorporate the final sentence in Clause 14.3" (emphasis added). There was evidence that the respondent wanted the sentence, and that the appellant did not want it. It may also be taken that, ultimately, they agreed to it. But there was no evidence as to the reasons of the appellant, in particular, for allowing the respondent have its way in relevant respects. Much less, of course, was there any evidence as to "any mutual understanding of [the] meaning and effect" of the final sentence. His Honour was not, in my view, in error in the observation of which the appellant complains in its fourth ground of appeal.
45 The fourth ground of appeal should, therefore, be rejected.
46 As to the appellant's fifth ground of appeal, I need only note that the appellant's failure to have made application under s 217(1) of the FW Act formed no part of the primary Judge's conclusion that cl 74 of the 2014 agreement imposed no obligation on the respondent. His Honour's observation to that effect came after he had completed his construction of cl 74. I would, therefore, reject this ground.
47 I regard the matter raised under the appellant's sixth ground of appeal as no more than argumentative apropos the broad area covered by its first ground. I would not regard it as properly advanced as a discrete ground in itself. Beyond what I have already said about the first ground, nothing needs to be said about the sixth.
48 For the reasons given above, I would dismiss the appeal.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.