NSW Nurses' Association v Crown in Right of the State of New South Wales

Industrial Relations Commission (NSW)|2010-08-17|Before: Marks J

CITATION: NSW Nurses' Association v Crown in Right of the State of New South Wales (Director General, NSW Dept of Health in respect of Sydney West Area Health Service( [2010] NSWIRComm 125

PARTIES: NSW Nurses' Association (Applicant) Crown in Right of the State of New South Wales (Director General, NSW Dept of Health in respect of Sydney West Area Health Service) (Respondent)

CATCHWORDS: APPLICATION FOR DECLARATION UNDER s 154 - declarations directed to contracts allowing employees to take voluntary redundancy - repudiation - not accepted by election - whether effluxion of time precludes applicant from relying on agreement - jurisdiction of Industrial Court - "industrial matter" - functions of the Commission - declaratory relief granted - orders made - proceedings stood over to allow parties to confer

LEGISLATION CITED: Industrial Arbitration Act 1940 - s 30A Industrial Relations Act 1996 - s6, s136, s146, s154

Foren v Wight (1989) 168 CLR 385 Forster v Jododex Aust Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 Havenbar Pty Ltd v Butterfield [1974] HCA 24; (1974) 133 CLR 449 CASES CITED: Peter Turnbull and Co Pty Ltd v Mundus Trading Co (Australiasia) Pty Ltd [1954] HCA 25; (1953-1954) 90 CLR 235 Public Service Board (NSW) v Public Service Association (NSW) (1986) 14 IR 445 T v the Commission for Children and Young People [2008] NSWIRComm 21 Tooheys v Blinkhorn [2008] NSWSC 499 Turner v The Australasian Coal and Shale Employees' Federation and Elcom Collieries Pty Ltd [1984] FCA 275; (1984) 6 FCR 177

HEARING DATES: 30 June, 1 July and 17 August 2010

Mr M Gibian of counsel (Applicant) LEGAL REPRESENTATIVES: Mr R Warren of counsel (Respondent)

New South Wales Nurses' Association v Crown in Right of the State of New South Wales (Director General, NSW Department of Health in respect of Sydney West Area Health Service)

Application for declaration under s 154 of the Industrial Relations Act 1996.

1 In these proceedings the applicant, New South Wales Nurses' Association, seeks a declaration by the Court under s 154 of the Industrial Relations Act 1996 ("the Act") which will be binding on the respondent, Crown in Right of the State of New South Wales (Director General, NSW Department of Health in respect of Sydney West Area Health Service). In essence, the proceedings are brought by the applicant on behalf of a number of its members, all of whom were or are employed by the respondent in nursing positions within the Health Service of New South Wales operated by the Sydney West Area Health Service. Each of the persons concerned received a communication from persons representing the respondent offering them the ability to terminate their employment on the basis of voluntary redundancy and to be paid certain moneys on termination of employment. It was said by the applicant that the employees concerned accepted these offers of voluntary redundancy. However, before the date fixed for the termination of their employment, the respondent purported to withdraw the offer of voluntary redundancy. In these proceedings, the applicant seeks declarations that will, in effect, require the respondent to make payment to those of the employees who have left the respondent's service and to require such payment to be made for those employees who terminate their employment within a fixed period of time. 2 The applicant asserts, and the respondent denies, that in the case of each of the employees there was a contractual entitlement to be paid the voluntary redundancy payments notwithstanding the purported withdrawal of the offers of voluntary redundancy. The applicant asserts, and the respondent denies, that this Court has jurisdiction and power to make orders in the nature of the declarations sought. 3 The provisions of s 154 of the Act are in the following terms: 154 Declaratory jurisdiction

(1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed.

(2) Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought. The factual matrix

4 The precise factual circumstances that apply to each of the employees concerned are not identical in all respects. However, what is common to all of them is that they each received a letter offering them the opportunity to express interest in applying for voluntary redundancy and/or to apply for voluntary redundancy. 5 Apart from some documentary material, all of the evidence in the proceedings was given by way of affidavit. I shall summarise such of it as I consider relevant for the purpose of the determination of the proceedings. 6 The first named of the employees, alphabetically, is Miriam Alzamora. Ms Alzamora was relevantly employed at the Westmead Hospital. In an affidavit, she said that during late June 2009 she was informed by a work colleague that the respondent was offering voluntary redundancies and that an application form was available on the internet. She downloaded the form and completed it. It was entitled "Expression of Interest - Voluntary Redundancy". The form commenced "Please complete the following information to enable an assessment of your current entitlement. Please note, completion of this application provides information only and does not constitute an approval or offer for a voluntary redundancy." The form was to be forwarded to a named HR consultant by 17 July 2009. Ms Alzamora completed the form on 30 June 2009. 7 On 31 August 2009, Ms Alzamora received a letter dated 27 August 2009 under the hand of Mr Kevin Gillies who was stated to be: "Area Manager, Human Resources Services and Policy, Sydney West Area Health Service". 8 The letter referred to Ms Alzamora's "expression of interest in voluntary redundancy …". It offered her "the opportunity to take voluntary redundancy …" and set out the components of a package of payments. In addition to those components Ms Alzamora was informed that "if you accept this offer of voluntary redundancy within two (2) weeks of the offer being made and terminate employment within the time nominated by the employer [maximum of four (4) weeks] you will be entitled to the following payments …" and there then followed a reference to additional monetary payments based on years of service. 9 The letter went on to stipulate a condition of accepting the offer of redundancy to the effect that if Ms Alzamora obtained employment in any capacity in the New South Wales public sector "within the period to which the severance payment applies, that you will refund to the Sydney West Area Health Service, that portion that applies to the period of reemployment prior to commencing employment with the new Public Sector organisation." 10 There then followed this sentence which assumed some significance in the context of submissions made by the respondent: "This offer is made on the grounds that your position is excess to the staffing requirements of the Sydney West Area Health Service." 11 The letter then said: "The proposed date for your termination is 9 October 2009. Any departure from this date should be discussed with the undersigned." 12 The letter went on to refer to the provision of final payment details and the like, referred to certain attachments and asked that one of them be returned to Area Human Resources. 13 On 7 September 2009, Ms Alzamora completed a document provided to her by the respondent entitled "Confidential Memorandum - Acceptance of Offer of Voluntary Redundancy". It was addressed to Professor Steven Boyages - Chief Executive, Sydney West Area Health Service. 14 The letter signed by Ms Alzamora, the terms of which were, as I have said, provided by the respondent, said in part:

I refer to your letter of 27 August 2009 concerning the offer of a voluntary redundancy.

I have considered the offer of Voluntary Redundancy by Sydney West Area Health Service.

I wish to accept the Voluntary Redundancy offer attached and to voluntarily terminate my services with the Sydney West Area Health Service.

I acknowledge that my last day of service with the Sydney West Area Health Service will be 9 October 2009.

I acknowledge that I have been offered the following redundancy payments by the Sydney West Area Health Service … and then there is reference to the entitlements previously set out in the correspondence to Ms Alzamora. 15 There is further material in the printed form of letter to which it is not necessary to refer. 16 The letter concluded

I have read and understood the information relating to Voluntary Redundancy in Section 12 "Voluntary Redundancy" of "PD 2007_085 - Managing Displaced Staff of the NSW Health Service." 17 By email dated 14 September 2009, a representative of the respondent confirmed that Ms Alzamora's acceptance had been received. 18 Ms Alzamora then proceeded to arrange alternative employment within the private health sector. 19 On 15 September 2009, Ms Alzamora's attention was directed to a document that she saw in a tea room in a ward of Westmead Hospital. The document bore the insignia of Sydney West Area Health Service referred to "SWAHS voluntary redundancy program" and said:

As an outcome of a dispute notification lodged in the NSW Industrial Relations Commission by the NSW Nurses' Association and the Health Services Union staff need to be advised that the progressing of any further voluntary redundancies is on hold until such time as the dispute is resolved. There is then a reference to employees who had lodged their acceptance by 2 September 2009 and whose acceptance had already been processed, as stating that their circumstances would not be affected. 20 On 16 September 2009, Ms Alzamora received an email setting out calculations of the moneys payable to her on termination of her employment by way of voluntary redundancy. 21 On 28 September 2009, Ms Belinda Sismey, the Area Human Resources consultant of the respondent advised Ms Alzamora that

The Director General of Health has directed that SWAHS not process any offers of VR to those positions deemed to be frontline clinical roles. Your position has been identified as one of those falling into this category. As a result the offer of VR has been withdrawn. … This information will be confirmed with a letter later this week. 22 A confirmatory letter dated 29 September 2009 was subsequently received by Ms Alzamora. 23 By letter dated 9 October 2009 addressed to the Nurse Unit Manager at Westmead Hospital, Ms Alzamora referred to previous correspondence and said:

In accordance with the offer of redundancy which has my final date of employment as 9 October 2009, I cease my employment on this basis. … Could you please arrange for the severance payment as previously provided and any outstanding statutory and award entitlements of mine to be made as soon as possible. 24 There is then evidence of a conversation between Ms Alzamora and the relevant Nurse Unit Manager when, by agreement, her employment was extended to 3 November 2009, on which date her employment came to an end. 25 Some of the employees concerned were on leave at the time that the offer of voluntary redundancy was made. Such was the case of Katherine Turner who had last been working at the Lawson Community Health Centre. She commenced long service leave on 1 July 2009, also taking attached annual leave. She had heard about the proposed offers of voluntary redundancy before going on leave. On about 17 July 2009, she forwarded an expression of interest in voluntary redundancy to the respondent by facsimile. She received a letter offering her the opportunity to take voluntary redundancy dated 27 August 2009, which is relevantly in the same terms as the letter received by Ms Alzamora, which I have previously described in some detail. Ms Turner's signed acceptance, in identical terms to those that applied to Ms Alzamora, was forwarded to the SWAHS by facsimile on 4 September 2009. 26 After returning from holidays, Ms Turner made contact with the Human Resources Department of SWAHS on 5 October 2009. She was told that a letter would be forthcoming withdrawing the offer of voluntary redundancy, which was to have taken effect on 9 October 2009. A letter in the same terms as received by Ms Alzamora dated 29 September 2009 was later received by Ms Turner. It purported to withdraw the offer of voluntary redundancy. 27 On 4 January 2010, Ms Turner wrote to the Area Manager, Human Resource Services and Policy, of SWAHS referring to her acceptance of the voluntary redundancy package and complaining that she had not been paid. She concluded by saying:

Please be advised that I will not be returning to work as indicated in my voluntary redundancy acceptance letter. Ms Turner did not at any time resume work with the respondent. She terminated her employment on 19 February 2010 on the expiry of her long service leave. 28 A third category of employees, which consists of the majority of the persons affected, relates to those who, although having accepted the offer of voluntary redundancy and payment of the package, remained working for the respondent and in employment after the purported withdrawal of the offer by the respondent. Such is the case of Corazon Bautista. Ms Bautista received an invitation to make an expression of interest in voluntary redundancy and ultimately forwarded an acceptance letter, in the same terms as previously referred to, to the respondent on 4 September 2009. She was ultimately advised in late September 2009 that the voluntary redundancies that applied to frontline clinical staff would no longer be offered. She received a letter, in the same form as previously referred to, to that effect on 16 October 2009. 29 Ms Bautista continues to work at Westmead Hospital "because I cannot afford to retire without the redundancy payment." 30 The circumstances of the employees concerned appear to have been taken up thereafter by the applicant on their behalf. Under the hand of Brett Holmes, General Secretary of the applicant, a letter was forwarded to the Area Manager, Human Resources Services & Policy of the respondent by facsimile on 2 October 2009. The letter was in the following terms:

Re: IRC9/1307 - Dispute with SWAHS re voluntary redundancies

We refer to our letter dated 10 November 2009 and advise that, in addition to the persons named in that correspondence, the Association believes the Area Health Service is obliged to pay the redundancy payments offered to, and accepted by, the following employees; Peck Huan Waldon Kasthuri Santhariah Lu Dongmei

It (sic) the Association becomes aware of other disputed claims for redundancy payments, the Area health Service shall be advised in due course. We look forward to your response.

If you have any queries please contact our Industrial Officer, Stephen Hurley-Smith. 31 A further letter was forwarded by the Association to the Area Manager, Human Resources Services & Policy of the respondent by facsimile dated 10 November 2009. It commenced by reference to a dispute notification before the Industrial Relations Commission of New South Wales and said, in part,

We refer to the Report Back for this matter on 6 November 2009. Pursuant to the Commissioner's comments on that occasion, we advise that the Association believes the Area Health Service is obliged to pay the redundancy payments offered to, and accepted by the following employees: … and then followed a list of 24 names. A further three names were notified to the respondent by the Association on 23 November 2009. 32 There is no evidence in the proceedings that any of the members of the applicant association whose interests are the subject of these proceedings have acquiesced in or accepted the purported withdrawal of the right to received voluntary redundancy payments made by the respondent. Were there binding contracts for the payment of voluntary redundancy payments?

33 The applicant asserted that as between each of its members who accepted the offer of voluntary redundancy by completing the form enclosed with the letter of offer and forwarding it to the respondent, there was a binding contract, the effect of which was that each of the employees would terminate their employment on or about 9 October 2009 and each of them would receive a voluntary redundancy package as described in the letter of offer. Whether such a contract was collateral to the underlying contract of employment or a separate contract was said to be irrelevant. On either basis, there was a contractual entitlement. It was then said that the purported withdrawal of the offer after acceptance constituted a repudiation of that contract, that none of the members involved had accepted the repudiation and that the contractual obligation on the part of the respondent to pay voluntary redundancy payments remained extant. 34 The respondent denied that there was any contractual entitlement. Firstly, it said that, albeit after acceptance of the offers by each of the employees concerned, their positions were no longer considered redundant and therefore a term or condition of the offer and, presumably, of the contract had not been fulfilled. Furthermore, any contractual obligation to make voluntary redundancy payments was extinguished after 9 October 2009 because this was the date set for the termination of the employment of each of the employees (with limited exceptions, to which I shall later refer). 35 The legal principles that apply to a determination as to whether or not a contract has been established at law are well known and it is not necessary to refer to them in detail. 36 In Tooheys v Blinkhorn [2008] NSWSC 499, White J made some general comments regarding contractual agreements and their formation. Referring to an earlier Supreme Court case, his honour at [45] said:

There was no dispute as to the principles of law to be applied. In Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309, Mahoney JA said (at 326) that the questions to be addressed were: … did the parties arrive at a consensus?; (if they did) was it such a consensus as was capable of forming a binding contract?; and (if it was) did the parties intend that the consensus at which they arrived should constitute a binding contract? His Honour further noted that when determining parties' intentions upon entering into contractual relations, the test to be applied is based on what a "reasonable person" would have considered the contract to mean. At [46]:

The parties' intentions are to be ascertained objectively from the parties' words and conduct, the terms of the correspondence and the surrounding circumstances. The meaning of the letters of 31 January 2008 is determined by what a reasonable person in the position of the parties would have understood it to mean. That requires consideration of the surrounding circumstances and the purpose and object of the transaction ( GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1996) 40 NSWLR 631 at 634; Taylor v Johnson (1983) 151 CLR 422 at 429; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at 179 [40]). I respectfully adopt the same approach 37 In contractual law terms, the document entitled "Expression of Interest - Voluntary Redundancy", which I have previously described in connection with the circumstances of Ms Alzamora, may be characterised as an invitation to treat. I should add that the form which each of the employees was required to fill out included details of the person's payroll number, position title and the department/unit, facility/division and network in which the person was employed. The form concluded by asking the question "Why do you think your position is surplus to requirements and can be deleted?" Each of the persons was invited to set out reasons why his or her position was surplus to requirements and could be deleted. 38 The letter under the hand of the Area Manager, Human Resources Services & Policy dated 27 August 2009, which I have also previously described in some detail, is, clearly, an offer to enter into an agreement for the employee "to take voluntary redundancy." That letter clearly refers to "a condition of accepting this offer of redundancy" namely the obligation to refund part of the payment received if the employee again becomes employed in the New South Wales public service within the period described. 39 That letter does contain the following: "This offer is made on the grounds that your position is excess to the staffing requirements of the Sydney West Area Health Service." This is the only reference to the circumstances of the position occupied by the employee to whom the letter of offer is addressed. The respondent submitted that the inclusion of this sentence in the letter of offer created a condition that needed to be fulfilled if there was to be a binding contract between it and the employees to whom the offers had been made. I would not read this sentence as creating a term or condition of the agreement subsequently entered into. In my opinion, this sentence is indicative of and reflective of a decision that had been made by the respondent that the positions of the employees concerned were surplus to its requirements. 40 There was admitted into evidence a "Policy Directive" document issued by the Department of Health, NSW with publication date 21 November 2007. Clause 12 of that document refers to the circumstances in which voluntary redundancy may be offered to employees. It is limited to situations where the positions of staff members "have been deleted, where there is no likelihood of redeployment, or where the skills of the displaced staff members are not in demand." 41 As is obvious, only the respondent has the ability to assess whether an employee's position becomes surplus to requirements and attracts the ability to make an offer of a voluntary redundancy package. The sentence in question is indicative, as I have said, of a determination made by the respondent that it was appropriate to make an offer of voluntary redundancy to the employees concerned. There is no hint contained within the letter that, if at any relevant time the respondent determined that the employee's position was not surplus to requirements, the offer could be withdrawn or that the proposed agreement for the payment of a voluntary redundancy package would not be put into effect. I reject the submission made on behalf of the respondent that in some way the agreement that eventually came into effect was conditional upon the respondent determining that the employee's position remained surplus to requirements, presumably up to the time of termination of employment and payment of the voluntary redundancy package. 42 It is also clear, in my opinion, that the offer, which was constituted by the letter of 27 August 2009, was capable of being accepted by the completion of the form of acceptance of that offer which was enclosed with the offer itself, once that form of acceptance had been received by the respondent. At that stage, there came into effect a binding contractual agreement for the termination of the employment of the employee on the nominated day and for the payment of the voluntary redundancy package described in some detail in the letter of offer and in the acceptance form. 43 I should add for completeness that there must be some doubt about whether the respondent has established by evidence that the positions of these employees were no longer surplus to requirements. The initial notice that any difficulties had arisen was that displayed in the tea room in the ward, as referred to in the evidence of Ms Alzamora. That notice merely indicated that the progressing of any further voluntary redundancies was "on hold" because of a dispute notification lodged in the Industrial Relations Commission by the applicant. This is not necessarily indicative of any position adopted by the respondent concerning the positions of the employees. Furthermore, the email from Belinda Sismey forwarded to Ms Alzamora on 28 September 2009 said that the Director General had directed "that SWAHS not process any offers of VR to those positions deemed to be frontline clinical roles." This information was replicated in the letter from the Area Manager, Human Resources Services & Policy dated 29 September 2009, addressed to Ms Alzamora. 44 I would not conclude, therefore, on such evidence as is before the Court that in any event even if the employee's position in terms of being surplus to requirements was a condition of the agreement reached concerning voluntary redundancy, that that condition had been fulfilled. 45 For all these reasons, I conclude that there was in place with respect to all of the employees concerned an agreement that they would cease employment on a particular day, or on a day to be arranged, and that they would be paid a voluntary redundancy package upon the cessation of that employment. That contract is one that is enforceable at law. The effect of the purported withdrawal of the offer after the contract was made.

46 It is quite clear, on the basis of the evidentiary material to which I have referred and the conclusions which I have already made, that the letter from the Area Manager, Human Resources Services & Policy of 29 September 2009, which purported to withdraw the offer of voluntary redundancy, constituted a repudiation of the respondent's obligations under the contract. 47 It is a trite observation that in these circumstances the employees concerned were entitled to elect, if they so wished, to terminate that contract and sue for breach or to elect to keep the contract on foot. In Foren v Wight (1989) 168 CLR 385, the High Court had reason to consider repudiation regarding contractual agreements between a vendor and purchaser of a parcel of land. At p 458, Gaudron J stated:

A party to a contract which has been repudiated may either terminate the obligations under the contract or affirm the contract It is helpful to refer also to the judgment of Dawson J in the same proceedings. At p 441 his Honour said:

Repudiation by way of anticipatory breach by a party does not put an end to the contract unless the other party accepts the repudiation and rescinds the contract. Although he may do so, the other party does not have to accept the repudiation. He may continue to treat the contract as on foot and hold the party guilty of repudiation to the performance of his obligations. If those obligations remain unperformed when the time for performance arrives, the anticipatory breach will be converted into an actual breach. If the other party keeps the contract alive, he does so not only for his own benefit but also for the benefit of the party guilty of repudiation. 48 The evidence which I have outlined is to the effect that none of the employees accepted the repudiation by the respondent. All of them who have remained in employment have elected to keep their individual contracts for the payment of the voluntary redundancy package on foot. This evidence consists of individual communications made by some of the employees, some of which I have referred to in dealing with the specific evidence, as well as the representations made on behalf of the employees by the applicant in its capacity as an industrial organisation of employees representing their interests in dealing with the respondent. 49 The respondent relied upon the fact that the time period during which, or upon which, the employees would cease employment has long since expired. In these circumstances, it was said that in some way the employees have lost their entitlement to rely upon the contract. 50 There are a number of answers to this submission that I can make without recourse to authority. Firstly, it would be inequitable to allow the respondent to rely upon the effluxion of time when its repudiation of its obligations under each of the contracts has precluded the employees from having their contracts of employment terminated upon receipt of the promised voluntary redundancy package. Secondly, the respondent denied in September 2009 that it was obliged to make payment to the employees concerned and has continued to avow that situation to the present time. This is notwithstanding the representations made by the applicant on behalf of the employees concerned, albeit that those representations have continued to be made over what is now a long period of time and appear to have involved proceedings before the Industrial Relations Commission of New South Wales. 51 However, the matter is not free from authority. That authority establishes that a party to a contract who refuses to carry out contractual obligations and persists in that refusal until a time has arrived at which performance of the contract was due is prohibited from relying on the effluxion of that time to deny the innocent party the right to enforce the contract. 52 So much may be gathered from the judgment of Kitto J in the High Court of Australia in Peter Turnbull and Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd [1954] HCA 25; (1953-1954) 90 CLR 235. 53 His Honour put the position most clearly at the commencement of his Honour's judgment:

I agree with the Chief Justice in thinking that the principle which is decisive of this case is that which is illustrated by Lord Campbell's statement in Cort v. Ambergate &c. Railway Co . [1851] EngR 510; (1851) 17 QB 127, at p 148 [1851] EngR 510; (117 ER 1229, at p 1237) , of the decision in Ripley v. M'Clure [1849] EngR 830; (1849) 4 Ex 345 (154 ER 1245) . His Honour has set out the passage and I need not do so again. The principle, which applies whenever the promise of one party, A, is subject to a condition to be fulfilled by the other party, B, may, I think, be stated as follows. If, although B is ready and willing to perform the contract in all respects on his part, A absolutely refuses to carry out the contract, and persists in the refusal until a time arrives at which performance of his promise would have been due if the condition had been fulfilled by B, A is liable to B in damages for breach of his promise although the condition remains unfulfilled.

The doctrine of anticipatory breach is, of course, applicable as soon as A has communicated to B his refusal to carry out the contract. Under that doctrine B is put to his election. He may, if he chooses, treat the contract as brought to an end in consequence of A's default, and recover damages from A for loss of the benefit of the contract. Alternatively, he may treat the contract as continuing on foot, in which case it will remain in force for the benefit of both parties, just as it would if the refusal had never been declared. If A persists in his refusal, B may at any time while the refusal continues elect to treat the contract as at an end and sue for damages; but unless and until he does so the contract remains on foot, and A may withdraw his refusal and require B to perform the contract on his part, subject only to giving B reasonable notice of his change of intention: Panoutsos v. Raymond Hadley Corporation of New York (1917) 2 KB 473 ; Cohen & Co. v. Ockerby & Co. Ltd . [1917] HCA 58; (1917) 24 CLR 288, at p 298 , or he may take advantage of any supervening circumstances of such a character as to discharge the contract: Avery v. Bowden [1856] EngR 889; (1856) 6 E & B 953 (119 ER 1119) . But suppose that A's refusal is never retracted; that B does not elect while the period specified by the contract for performance is unexpired to treat the contract as determined by reason of the refusal; and that no event occurs during that period to discharge the contract. I am supposing, of course, a case like the present where in all the circumstances the refusal necessarily conveys to B that he need not trouble to fulfil a condition to which A's obligations under the contract are subject, because even if he does A will still not perform his obligations. Is it true in such a case to say that A's continued refusal must not be allowed any significance in an action by B against A, in which B seeks damages for not getting what he bargained for and A seeks to defend himself by relying upon the condition which he has all along shown that he was not concerned to have fulfilled? What does it matter for the purposes of that action that the refusal was not treated as ending the contract and as founding an action for anticipatory breach? The damages claimed are not for loss of the contract by premature termination, but for loss of the benefit which performance of the contract in accordance with its terms by both parties would by now have produced to B but for the fault of A. It is a cause of action which the facts I have assumed make out, unless the non-fulfilment of the condition is an answer to it; and as to that the inescapable fact is that A's refusal was a continuing intimation that the condition need not be observed, and it did not become any the less an intimation to that effect because B chose not to determine the contract before its time. The intimation having continued until the time came when A would certainly have been in default if the condition had been fulfilled, the law, as I understand it, treats A's obligation as absolute, and holds B entitled to damages for not having got what A promised he should have in the event of the condition being fulfilled. (At pp 250 - 251). 54 Kitto J went on to discuss in more detail at pp 251 - 253 the consequences of the inability to perform by an innocent party brought about by the repudiation of the other party and concluded that the innocent party should be treated as having been discharged from doing that which he or she was precluded from doing by reason of the repudiation. 55 Mr Gibian of counsel, who appeared for the applicant, relied also upon the approach of the High Court of Australia in Havenbar Pty Ltd v Butterfield [1974] HCA 24; (1974) 133 CLR 449. In those proceedings, the Court concluded that a purchaser of property was entitled to specific performance of a contract of sale notwithstanding default in obtaining a plan of subdivision in circumstances where default by the vendor had contributed to the purchaser's failure to comply with this condition. There does not appear to me to be any particular discussion about the relevant principles that apply, but the Court appears to have proceeded on the basis that the principle that I have extracted from the judgment of Kitto J in Peter Turnbull is to be applied. 56 I mention also for completeness the judgment of the Full Bench of the Federal Court of Australia in Turner v the Australasian Coal and Shale Employees' Federation and Elcom Collieries Pty Ltd [1984] FCA 275; (1984) 6 FCR 177. The Court held that a person who was offered employment as a junior trainee mineworker by letter dated 6 November 1982 but who had never been permitted to attempt work because of the failure of a trade union to admit him to membership was still a party to a contract of employment as at the date of the judgment of the Court, namely 26 September 1984. This was so despite the fact that he had not, as I have said, attempted to perform work because the employer had prohibited him from doing so unless and until he became a member of the trade union. Any question of any time for the performance of work whether implied or otherwise in the contract of employment was disregarded by the Court in reaching this conclusion. 57 In all the circumstances, I regard the contracts between the relevant employees and the respondent requiring the payment of a voluntary redundancy package on termination of employment as remaining extant. The relief sought

58 The orders sought by the applicant are contained within an amended application filed on 13 April 2010. That application was further amended during the course of hearing submissions on 17 August 2010. The orders sought are in the following terms:

That the offers of voluntary redundancy made by letters dated 17 August 2009, 27 August 2009 and 29 September 2009 constituted binding contractual agreements upon acceptance and the Sydney West Area Health Service was not entitled to withdraw the offers of voluntary redundancy.

That the following employees are immediately entitled to payment of a redundancy payment calculated on the basis set out in the letters addressed to each employee from the Sydney West Area Health Service offering voluntary redundancy:

Miriam Alzamora Amal Rabie Michelle Roach Katherine Turner Dongmei Lu

(a) That the following employees are entitled to have their employment terminate within 28 days of date of judgment on the basis they receive a package of redundancy payments calculated on the basis set out in the letters addressed to each employee from the Sydney West Area Health Service offering voluntary redundancy.

Margit Kent Daira Polis Margaret Kirkley Corazon Bautista Caterina Scarazza Marlene Lawler Grace Mazi Kasthuri Santhariah Julianne Brisbane Robyn Rafton Lorraine Bateman Miriam Panol Jennifer Mellor Anne Brady Fay Smith Cheryl Hunter Sandra McDermott Peck Waldon Cornelia Jongsma Joanne Rogerson Ljubica Repic Jacqueline Jefferson Soew Khim Seow

(b) That the redundancy payments payable to each employee are calculated on the basis on their period of service as at the date their employment terminated or terminates.

(b) That the redundancy payments payable to each employee are calculated on the basis of their period of service as at 9 October 2009. Jurisdiction and power to make the declaration sought

59 The jurisdiction and power to make orders of the kind sought by the applicant in these proceedings is contained within s 154 of the Act, set out in [3] above. Prior to commencing the discussion about this matter, I should observe that no point was raised by the respondent concerning the status of the applicant and its capacity to initiate these proceedings on behalf of the employees. This is a matter which has been the subject of observations by a Full Bench of the former New South Wales Industrial Commission of New South Wales in Court Session in Public Service Board (NSW) v Public Service Association (NSW) (1986) 14 IR 445. 60 Those proceeding considered for the first time at appellate level the provisions of a newly introduced s 30A of the then Industrial Arbitration Act 1940 which conferred for the first time on the Industrial Commission a power to make a declaratory order or award. The Full Bench (Fisher J President, Watson and Macken JJ) upheld the ability of an industrial organisation of employees to commence proceedings under that section seeking declaratory relief on behalf of its members. The discussion is contained at pp 450 - 451. 61 Importantly for current discussion, the Full Bench, in discussing the power to make orders in the nature of declaratory relief, said:

[T]he new power is intended to be exercisable in a situation in which a question arises whether or not the employee has been lawfully deprived of his entitlement to salary, either as a consequence of some alleged incorrect application of award provisions, or of the terms of his contract of employment or some applicable statutory prescription, in this case the Public Service Act . (At p 449). 62 The power to make declaratory orders possessed by the common law courts pursuant to statute was discussed by Gibbs J (as his Honour then was) in the High Court of Australia in Forster v Jododex Aust Pty Ltd [1972] HCA 61; (1972) 127 CLR 421. Those proceedings concerned the validity of the issue of a mining exploration licence. Section 10 of the then Equity Act 1901 (NSW) vested in the Supreme Court of New South Wales in Equity:

jurisdiction to make binding declarations of right whether or not any consequential relief is or could be claimed, and whether or not the suit in which the declaration is sought is a suit for equitable relief or a suit which relates to equitable rights or titles … . 63 After observing that the power to make a declaration "where it is a question of defining the rights of two parties, is almost unlimited; I might say only limited by its own discretion …" Gibbs J said:

It is neither possible nor desirable to fetter the broad discretion given by s. 10 by laying down rules as to the manner of its exercise. It does, however, seem to me that the Scottish rules summarized by Lord Dunedin in Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd . (1921) 2 AC 438, at p 448 , should in general be satisfied before the discretion is exercised in favour of making a declaration : "The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought."

Beyond that, however, little guidance can be given. As Lord Radcliffe said in Ibeneweka v. Egbuna (1964) 1 WLR, at p 225: "After all, it is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration." (At p 438). 64 The nature and extent of the power and jurisdiction of this Court under s 154 of the Act was considered recently by Haylen J in T v the Commission for Children and Young People [2008] NSWIRComm 21. At [17], [19] and [20], his Honour said:

[17] There are other considerations. As already indicated, the provisions of s 154 of the Industrial Relations Act permits the Court to make binding declarations of right "in relation to a matter in which the Commission (however constituted) has jurisdiction". It is accepted that the words "in relation to" are broad and frequently used in legislation to permit courts to consider issues that are connected with an application. Similarly, the word "matter" has been broadly construed. For example, in relation to the accrued jurisdiction of the Federal Court the "matter" is the justiciable controversy between the parties and comprises the substratum of facts and claims constituting the controversy between them. A justiciable controversy is not limited to the form of the proceedings ( Re Wakim; Ex parte McNally and anor (1999) 198 CLR 511 at 583 - 88) but rather is comprised of the whole of the controversy between the parties that is before the Court. There will be a single matter if different claims arise out of common transactions and facts or a common substratum of fact, notwithstanding that the facts upon which the claims depend do not wholly coincide (see Fencott v Muller (1983) 152 CLR 570 at 608): there is only one matter where different claims are so related that the determination of one is essential to the determination of the other ( Fencott at 607). In Burgundy Royale Investments Pty Ltd and ors v Westpac Banking Corporation and ors (1987) 18 FCR 212, the Full Court of the Federal Court was faced with a position where the applicant's principle claim for relief was for damages pursuant to s 82 of the Trades Practices Act 1974 and otherwise and also sought a declaration that several agreements made between certain of the applicants and certain of the respondents were void. Some of the claims made in the Federal Court's accrued jurisdiction were alternatives to statutory claims under s 86 of the Act and therefore derived from the same subject matter but it was submitted that once the statutory claims had been held to be without foundation, there remained those substratum of facts common to them and the common law claims such that the common law claims were entirely severable. It was submitted that the court had no jurisdiction in the common law claims. The Full Court rejected that analysis and held that the jurisdiction of the court was to entertain and determine all claims constituting a "matter" whatever their ultimate fate.

[19] While the respondent submitted that a superior court of limited jurisdiction, such as this Court, possessed no inherent powers it was accepted that there were a limited number of such powers available to courts established by statute, for example, the power to prevent an abuse of the court's processes. It is not fruitful to further examine this issue in light of the clear jurisdiction of the Court in this matter but it is to be noted that in Ainsworth and anor v The Criminal Justice Commission (1991-1992) 175 CLR 564 at 581, four members of the High Court stated that it was now accepted that superior courts have inherent power to grant declaratory relief and that it was a discretionary power which was neither possible nor desirable to fetter by laying down rules as to the manner of its exercise. That power was confined by considerations that marked out the boundaries of judicial power and so declaratory relief had to be directed to the determination of legal controversies rather than answering abstract or hypothetical questions. The persons seeking relief had to have a real interest and the relief would not be granted if the question was purely hypothetical. That statement of the High Court is general in its terms and does not analyse any different position that may apply to a superior court of limited jurisdiction but it may be expected that, just as courts of law are able to decide whether any statutory or regulatory provision applies in the course of dealing with a matter properly before it, the inherent declaratory power of a superior court of limited jurisdiction would be limited in the manner described in s 154 of the Industrial Relations Act.

[20] In a separate judgment in Ainsworth , Brennan J held that a declaration was available in the circumstances of that case and at 596-597 stated: In Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155, where a Chief Constable had given a police officer the option of resigning or having his services terminated and the Chief Constable had failed to give the officer the opportunity to deal with the allegations made against him, the House of Lords made a declaration to protect the interests of the officer who had resigned so far as those interests were susceptible of protection by declaration. Lord Brightman observed at 1172 that - It would, to my mind, be regrettable if a litigant who establishes that he has been legally wrong, and particularly in so important a matter as the pursuit of his chosen profession, has to be sent away from a court of justice empty-handed save for an order for the recoupment of the expenses to which he has been put in establishing a barren victory. I respectfully agree. 65 I respectfully adopt the observations and the discussion of his Honour. 66 The respondent submitted that the Court lacked jurisdiction and power to make the declarations sought by the applicant. The respondent said that the applicant was in effect seeking the enforcement of a number of binding contractual agreements between the respondent and its employees. The respondent said that the Industrial Relations Commission of New South Wales lacked jurisdiction to determine contractual arrangements between parties. It was confined to dealing with industrial instruments or making awards or orders including the making of industrial instruments. 67 This leads to a consideration of whether the declarations of right which are sought by the applicant are "in relation to a matter in which the Commission (however constituted) has jurisdiction." 68 The jurisdiction of the Commission is described, within part 1 of Chapter 4 of the Act, by reference to its functions as created by s 146. Section 146(1) is in the following terms:

(1) The Commission has the following functions: (a) setting remuneration and other conditions of employment,

(d) inquiring into, and reporting on, any industrial or other matter referred to it by the Minister,

(e) functions conferred on it by this or any other Act or law. 69 It will be noted that the functions include "resolving industrial disputes" and "hearing and determining other industrial matters". 70 "Industrial dispute" is defined in the dictionary to the Act as meaning "a dispute (including a question or difficulty) about an industrial matter … ." 71 "Industrial matter" is defined in s 6 of the Act in the following terms:

(1) General definition In this Act, industrial matters means matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry.

(2) Examples Examples of industrial matters are as follows: (a) the employment of persons in any industry (including the employment of minors, trainees, apprentices and other classes of employees),

(b) the remuneration (including rates of pay, rates for piece-work and allowances) for employees in any industry,

(c) the conditions of employment in any industry (including hours of employment, qualifications of employees, manner of work and quantity of work to be done),

(d) part-time or casual employment (including part-time work agreements),

(e) the termination of employment of (or the refusal to employ) any person or class of persons in any industry,

(f) discrimination in employment in any industry (including in remuneration or other conditions of employment) on a ground to which the Anti-Discrimination Act 1977 applies,

(g) procedures for the resolution of industrial disputes,

(i) the authorised remittance by employers of membership fees of industrial organisations of employees,

(j) the surveillance of employees in the workplace,

(k) the mode, terms and conditions under which work is given out, whether directly or indirectly, to be performed by outworkers in the clothing trades. 72 I should immediately observe that the involvement of an industrial organisation of employees on behalf of its members with an employer concerning matters pertaining to the employment relationship will prima facie inject an industrial flavour into the controversy. 73 The definition of "industrial matters" directs attention to, inter alia, "the privileges, rights, duties or obligations of employers or employees … ." Such privileges, rights, duties and obligations are not confined, in my opinion, to those that arise either under statute or under any industrial instrument. They may include any such matters that arise under a contract between the members of the industrial organisation of employees and their employers. So much was acknowledged by the Full Bench of the Industrial Commission of New South Wales in Court Session in the Public Service Board case to which I have previously referred. 74 More fundamentally, I do not understand how it could be argued that the Commission lacked jurisdiction and power to deal with the subject matter of these proceedings upon notification to it by the applicant that there was a controversy concerning the refusal of the respondent to afford the benefits of a voluntary redundancy package to the members concerned upon termination of their employment. Industrial disputes do not exist in the ether. They are by definition concerned with the relationship (and sometimes a lack of relationship) between employers and employees. Those relationships may be affected by a number of factors. These include individual contracts of employment, collective agreements, industrial instruments and statutory regimes. Those statutory regimes may in turn touch upon a wide variety of subjects including annual leave, long service leave, superannuation entitlements, occupational health and safety matters, surveillance of employees, employment of certain persons with criminal records and the like. All of these matters are commonly comprehended within the rubric of industrial disputation and are commonly encountered. To restrict the jurisdiction and powers of the Commission to matters which are confined in the manner contended for by the respondent, namely to those where an industrial instrument or order about an industrial instrument could be made would unduly and inappropriately restrict the work of the Commission. 75 Furthermore, the approach of the respondent unduly restricts the ordinary and usual meaning of the words employed in s 6(1) of the Act. There is no restriction in those words as to the source of the privileges, rights, duties or obligations which are referred to. There is no justification in restricting any of these matters by reference to a source that does not take into account statute or contract. 76 The definition of industrial matters is integral to the provisions of s 146(1)(b) and (c). The construction contended for by the respondent is not only inconsistent with the ordinary English usage of the provisions of ss 6(1) and 146(1)(b) and (c) of the Act but is inconsistent with my experience of the work of the Commission extending over a period exceeding 40 years. 77 The respondent also sought to rely in aid of this submission on the inability of the Commission to grant relief in dealing with the subject matter of the disputation between the parties. Strictly, whether and to what extent the Commission may grant relief is not the essential question that needs to be asked. The focus of attention on s 154 is the jurisdiction of the Commission. I suppose it might be argued that a lack of power to grant relief may be reflective of a lack of jurisdiction. On this basis, I point to the provisions of s 136 of the Act which would apply in the event that the dispute were arbitrated by the Commission. Section 136 is in the following terms:

(1) The Commission may, in arbitration proceedings, do any one or more of the following: (a) make a recommendation or give a direction to the parties to the industrial dispute,

(b) make or vary an award under Part 1 of Chapter 2,

(d) make any other kind of order it is authorised to make (including an order made on an interim basis). (2) Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute. 78 There is no reason why, in my opinion, the Commission could not make a recommendation that the voluntary redundancy package be paid to the relevant employees upon termination of employment or give a direction to this effect as contemplated by s 136(1)(a). I reject this submission accordingly. 79 For these reasons, I reject the submissions made by the respondent. The Court is empowered, if appropriate, to make binding declarations of right in relation to whether, in all the circumstances, the respondent should be required to pay to the relevant employees a voluntary redundancy package upon termination of their employment with the respondent. Expressed in this way, these proceedings do not concern the establishment of contractual agreements, the establishment of minimum conditions of employment or the circumstances in which redundancy payments might otherwise become payable, as asserted by the respondent. Nor is the Court engaged in a process in which it is ordering the termination of employment of employees or granting redundancy payments to persons still in employment whose employment positions are not redundant, as contended for by the respondent. Should discretionary relief be granted?

80 As was properly conceded by the applicant, the grant of relief under s 154 involves the exercise of a discretion. The circumstances in which that discretion should be exercised were referred to by Gibbs J in Jododex, in his Honour's judgment which I have extracted above. The question for determination is a real one and not theoretical, the applicant has a "real interest" in raising the matter in the interests of its members and there was, in all the circumstances, a proper contradictor. 81 Given the finding which I have made that there were in place binding contracts for the payment of voluntary redundancy packages and that the respondent repudiated its obligations under those contracts and thereby precluded the employees from taking advantage of the contracts so made, it is in my opinion appropriate that a form of declaratory relief be granted. 82 The respondent complained that these were matters that should have been agitated before a competent court having jurisdiction and power to deal with them. Presumably, this is a reference to the institution of individual proceedings by each of the employees concerned seeking to enforce each of the contracts. However, no such proceedings have been commenced and, being satisfied that this Court possesses jurisdiction and power, there is no reason why, as a matter of discretion, relief should not be granted to the benefit of the employees concerned. 83 Furthermore, the effluxion of time which has occurred since October 2009, although substantial, should not justify the Court in declining to exercise discretion in the favour of making orders. This is because, as I have already said, the respondent has at all times maintained that it was entitled to withdraw its offers of voluntary redundancy despite the making of concluded contracts and has thereby frustrated the ability of the employees to terminate their contracts of employment on the basis of payment of the voluntary redundancy package. Indeed, the position taken by the respondent, for which I can see no justification at law, would mandate the granting of the relief sought. 84 In all the circumstances, I propose to make orders in the terms sought by the applicant to reflect the amended orders filed in Court on 17 August 2010. In this regard, I intend making orders in terms of the first alternative order 3(b), namely that the redundancy payments are to be calculated on the basis of period of service as at date of termination. This is consistent with the continued operation of each of the contracts, notwithstanding the effluxion of time created solely by the conduct of the respondent. 85 In my reasons for judgment I have dealt with three different factual situations applying to three different employees. I was led to believe during the course of the proceedings that these three circumstances may reflect the circumstances of all of the employees concerned. In each case, I would conclude that each class of employee should be entitled to the relief sought. However, in the event that there are particular factual circumstances that may apply to a particular employee or employees, which are not accommodated within the broad description which I have outlined, I will stand the proceedings over to allow the parties to confer. If the particular circumstances of any employee or employees need to be further considered by the Court, then the proceedings can be relisted for this purpose pursuant to the liberty to apply, which I intend granting. 86 The applicant did not seek any order for costs and it is not necessary that I deal with this aspect. Orders

The proceedings are stood over to allow the parties to confer with respect to the classes of employees to be covered by the orders that the Court intends making. The parties should confer no later than 28 days from this date and advise my associate accordingly. 2) The applicant is directed to provide short minutes of order within 7 days of reaching any agreement with the respondent with respect to the classes of employees and if no such agreement is reached to exercise the liberty to apply, which is hereby granted, within 7 days of the failure to reach agreement.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Equity Act 1901(NSW)

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