Australian Bank Employees Union v Australia & New Zealand Banking Group Ltd
[1990] FCA 322
•29 JUNE 1990
Re: AUSTRALIAN BANK EMPLOYEES UNION
And: AUSTRALIAN AND NEW ZEALAND BANKING GROUP LIMITED
No. V37 of 1989
FED No. 322
Inudstrial Law - Practice and Procedure
34 IR 1
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Northrop(1), Keely(2) and Gray(3) JJ.
CATCHWORDS
Industrial Law - award - breach - dismissal of employee - whether employer in breach of a term of an award - proper construction of the term - reference to provisions in other awards to resolve apparent ambiguity.
Practice and Procedure - appeal - where at trial facts agreed to by the parties - discretion to receive further evidence on appeal.
Industrial Relations Act 1988 s.178
Federal Court of Australia Act 1976 s.27
Bank Officials Federal Award (1963) Clauses 12, 25 and 38
Metal Industry Award 1984
Federal Court Rules O.3 r.3, O.52 r.36
HEARING
MELBOURNE
#DATE 29:6:1990
Counsel for Applicant: Mr Hinkley
Solicitor for Applicant: Maurice Blackburn and Co
Counsel for Respondent: Mr Bleby QC and Mr Guidice
Solicitor for Respondent: Freehill Hollingdale and Page
ORDER
The Court Orders that the appeal be dismissed.
Note: Settlement and entry of orders is dealt with in order 36 of the Federal Court Rules.
JUDGE1
The Australian Bank Employees Union ("the Union") is an organisation of employees under the Industrial Relations Act 1988 ("the Act"). By application under s.178 of the Act, the Union sought the imposition of a penalty on the Australia and New Zealand Banking Group Ltd. ("the Bank") alleging the Bank had committed a breach of clause 38(A)(d)(1) of the Bank Officials Federal (1963) Award ("the Award"). By order made on 12 September 1989, the Court constituted by a single Judge, dismissed that application. The Union has appealed from that order.
The hearing of the application proceeded on the basis of a memorandum of agreed facts with the result that no other evidence was led. On the hearing of the appeal, some difficulties arose as a result of that procedure as is illustrated later in these reasons. The memorandum shows that the Union and the Bank are parties to and bound by the Award. It is not stated in the memorandum or in the copy of the Award, described as "a current copy of the Award" which is before the Court, that other banks are parties to the Award, but from other awards and orders of the Australian Conciliation and Arbitration Commission ("the Commission") it is apparent that other banks are parties to and bound by the Award.
Clause 38 of the Award was first inserted in the Award in 1986 and took effect from the first pay period to commence on or after 2 December 1985. This is confirmed by reference to the order made by the Commission and dated 26 May 1986 contained in Print G2917. Reference will be made later in these reasons to the relevant parts of Clause 38. Clause 25 of the Award is relevant to this appeal. With one variation which will be identified later, Clause 25 has been in the same form since the Award came into operation in 1963.
Tania Sue Guy was engaged for employment with the Bank on 9 May 1988 pursuant to the terms of a memorandum of agreement headed "Service Agreement". At the hearing of the appeal, the parties agreed that all relevant parts of the Service Agreement signed by Ms Guy were in the same form as they had been prior to Clause 38 being inserted into the Award and that the Service Agreement was the agreement normally signed by officers being engaged for employment with the Bank. From the commencement of her employment, Ms Guy was employed on probation for a period of six months. Before the expiration of that period of probation, Ms Guy's employment was terminated by the Bank on 28 October 1988 by notice in writing. On termination, she was paid one week's salary in lieu of notice.
The Union claims that under Clause 38 of the Award, the Bank was required to pay to Ms Guy four week's salary and that in not paying that amount, the Bank was in breach of Clause 38. The Bank denies it was required to pay any more than one week's salary.
At all material times, Ms Guy was a member of the Union. The Award in its current form and the Service Agreement are before the Court.
The Service Agreement contains terms relating to the employment of Miss Guy, who is described in the agreement as "the Officer". Clause 2 provides that "the Officer's employment shall from the date of commencement be probationary for a period of six months or such longer period as the Bank may during the period of probation determine". This clause is of importance since the only other reference to probation in the agreement is in Clause 12 which relates to termination of employment. Clause 12 is a long and detailed clause providing for the termination of employment. For present purposes, the substance of the relevant parts of the clause enable the Bank or the Officer to terminate the employment on the giving of "one calendar month's notice of termination of service given on either side or such lesser period as is mutually agreed or provided for in any industrial award or agreement"; see Clause 12(c)(i). Provision is made for payment of one month's salary in lieu of notice. Complementary provisions apply with respect to the Officer not giving the requisite notice, see Clause 12(c)(iii). A proviso to Clause 12(c) is of importance and is set out in full:-
"Provided also that where notice of termination of service is given or service is terminated without notice as aforesaid during any period of probationary employment of the Officer referred to in Clause 2 of this Agreement then this sub-clause
(c) shall be read and construed as if the expression "one week's notice" were substituted for the expression "one calendar month's notice" in paragraphs (i), (ii) and (iii) hereof and the expression "one week's salary" were substituted for the expression "one month's salary" in paragraphs
(ii) and (iii) hereof."
Until 1988 Clause 25 of the Award provided as follows:-
"25 - ENGAGEMENT An officer shall be engaged and employed by the month except where otherwise mutually agreed to in writing between the individual banks and their individual employees".
It should be noted that the Service Agreement, part from the probationary provisions, does not specify the term of employment. The agreement contains provisions for termination of employment by the giving of a month's notice. Before December 1988, the Award contained no express provisions relating to the termination of employment of employees.
A Reference to Print G2917 shows that Clause 38 was inserted into the Award on an application by the Union "in relation to termination, change and redundancy". Clause 38 is headed "Termination, Change and Redundancy". Clause 38(A) is headed "Termination of Employment". There are a number of sub-headings to (A), namely "Unfair dismissals", "Notice of termination by the bank", "Notice of termination by officers or part-time employees", "Disputes settlement procedure - unfair dismissals" and "Time off work during notice period." For present purposes Clause 38(A)(d), which is under the sub-heading "Termination of Employment", is of importance, but it is necessary to set out part only of Clause 38(A)(d) namely:-
"(d)(i) In order to terminate the employment of an officer or part-time employee the Bank shall give to the officer or part-time employee the following notice: Officer or Part-time Employee one month except where otherwise mutually agreed to in writing between the individual bank and the individual officer or part-time employee.
(ii) ..."
Other provisions of Clause 38(A)(d) make provision for payment in lieu of notice. Clause 38(A)(e) makes provision for termination by an officer. Part of that provision is set out:-
"(e) The notice of termination required to be given by an officer or part-time employee shall be the same as that required of a bank, save and except that there shall be no additional notice based on the age of the officer or part-time employee concerned."
Clause 25 and 38(A)(d)(i) of the Award remained in the same form until August 1988; see Print E3672. By order dated 2 August 1988, the Commission deleted Clause 25 and "paragraph 38(d)(i) (sic)" and inserted new provisions. The only change was to refer to four weeks instead of one month, but for ease of reference, the two provisions are set out:-
"25. An Officer shall be engaged and employed by the month (which shall be deemed to be a four-week period) except where otherwise mutually agreed to in writing between the individual banks and their individual officers."
"38(A)(d)(i) In order to terminate the employment of an officer or part-time employee the Bank shall give to the officer or part-time employee the following notice:
Officer or part-time employee four weeks except where otherwise mutually agreed to in writing between the individual bank and the individual officer or part-time employee."
In substance, the issue between the parties is whether the provisions of Clause 38(A)(d)(i) prevent the Bank from relying upon the proviso to Clause 12(c) of the Service Agreement which enables the Bank to give one week's notice to terminate the employment of an officer while that officer is on probation.
In order to support the claim of the Union, counsel appearing for the Union at the hearing of the application, contended that an ambiguity arose and sought to rely upon the award made in the Metal Industry Award 1984 in December 1984 "in relation to conditions of employment - termination, change and redundancy"; see Print F7390; to resolve that ambiguity. In addition, reference was made to the reasons for decision by the Commission and contained in Print E3672. That award and that decision were given before Clause 38 was inserted into the Award.
In reality it is wrong to say that reference was made to the Metal Trades Award and the decision to resolve an ambiguity arising from the words used in Clause 38 of the Award. The reference is directed more to illustrate the principles applied in relation to termination of employment. It is accepted that award provisions relating to "termination, change and redundancy" were inserted into many awards made by the Commission following protracted proceedings based upon the metal trades industry. In the Metal Trades Award, the termination provisions were framed having regard to the particular facts applicable to the metal trades industry. Thus, the new provision in that Award made provision for a variable term of notice ranging from one week's to four weeks' notice depending on the period of continuous service of the employee being a period of less than one year to a period of five years or more. In its reasons contained in Print F7262 the Commission expressly rejected an application by the employers that there should be a provision enabling an employer and an employee to agree to waive the period of notice. In rejecting that application, the Commission said at p 10 of the Print F7262:-
"Contracting out of notice period The employers also claimed that there should be a provision which would allow the employer and employee to agree, in writing, to waive the period of notice.
It was claimed that there would be circumstances where this would be of benefit to both parties but we are not satisfied, on the submissions before us, that such a clause would be appropriate."
The form of Clause 38(A)(d)(i) is very different from the equivalent provision in the Metal Trades Award. In the Award, the normal period of notice is now four weeks. In the Metal Trades Award the period varies from one week to four weeks depending upon the period of continuous service of the employee. In the Award, on any view, the period of four weeks can be varied between the employee and the bank, a provision which was expressly rejected in the Metal Trades Award. In these circumstances it is difficult to see how a reference to the Metal Trades Award and the decision, or for that matter, why the provisions were made in the Award, can be of any assistance in construing Clause 38(A)(d)(i) of the Award. At the very most, the reference illustrates that Awards are framed having regard to the circumstances of the industries with which they are concerned. In the present case, the parties, by agreement, led no evidence concerning the particular circumstances of the banking industry. I should indicate now that I do not find the reference to the Metal Trades Award and the related decision of any assistance in the construction of Clause 38(A)(d)(i) of the Award.
When the appeal came on for hearing, counsel for the Union, who was not the counsel appearing for the Union on the hearing of the application, contended that there was an ambiguity in the wording of Clause 38(A)(d)(i) of the Award. As an aid to resolving that ambiguity, counsel sought to lead further evidence at the hearing of the appeal. To that end, he moved the Court on notice that the Union have leave to lead evidence which was not before the trial Judge; see s.27 of the Federal Court of Australia Act 1976. Under that section, on an appeal, the Court has regard to the evidence given in the proceedings out of which the appeal arose but has power "in its discretion, to receive further evidence". Under O.52 r.36 of the Federal Court Rules, the application to receive further evidence is made by motion on the hearing of the appeal without notice but supported by affidavit establishing the grounds of the application and the evidence sought to be received. Under sub-rule 36(6) the affidavit must be filed "not later than 21 days before the hearing of the appeal". The Union did not comply with the requirements of sub-rule 36(6). In these circumstances, the Union sought an order that the time for compliance with O.52 r.36 be abridged pursuant to O.3 r.3.
The evidence sought to be led was a copy of the transcript of what was said in November 1985 by representatives of the Union and of the banks being parties to the Award in relation to the insertion of Clause 38 into the Award. That Clause was inserted with the consent of the parties to the Award and it was suggested that the transcript tended to show that the parties had agreed that "any agreement in writing" "under Clause 38(A)(d)(i) could only be obtained at the point of separation in relation to that separation". There was no material before the Court as to how that agreement was to be proved.
The Bank filed an affidavit from which it appears that the Bank disputes the existence of any such agreement and asserts that if the evidence was admitted, it desired to lead evidence in rebuttal. Further, the Bank claimed that if this matter had been raised at the hearing of the application, it would not have proceeded pursuant to the memorandum of agreed facts but would have required the Union to prove its case in the usual way and in that case it would have been able to lead evidence directed to any fact in issue including, if relevant, the existence of the alleged agreement.
After hearing submissions of counsel for the Union, the Court refused to abridge time for compliance with O.52 r.36 and announced it would give its reasons for so doing later. I now give these reasons.
On an appeal, the normal practice is for the Full Court to have regard to the evidence given in the proceedings out of which the appeal arose. It is not uncommon for the appeal court to receive as facts material which the parties to the appeal agree is relevant even though that material is not before the trial judge. This has been done in this case.
This is not an appropriate case in which to discuss in detail the principles to be applied in the exercise of the discretion to receive further evidence on appeal, but reference is made to what I said in Turner v. Jupiters Management Ltd. 2 June 1989, unreported, namely:-
"The power conferred on a Full Court by s.27 of the Federal Court of Australia Act to allow further evidence to be given on an appeal is exercised rarely and in exceptional circumstances only. In the present case, the giving of leave to the respondent to call evidence would, in substance, make the Full Court a trial court in which disputed questions of fact could arise. Questions of credibility could arise between evidence given by the appellant and evidence given by witnesses called by the respondent. The evidence of the appellant had not been given before the Full Court and the Full Court would be placed at a disadvantage in determining issues of credibility. Of more importance, however, a Full Court of the Federal Court exercising appellate jurisdiction is not a proper tribunal to receive evidence on disputed facts."
The facts of that case were very different from the facts of this appeal. Here the trial proceeded on agreed facts. If the Union had wanted to establish an agreement by leading evidence, assuming that evidence was admissible and relevant, the trial would have proceeded in a very different way. The introduction of further evidence on this appeal would change the very nature of the proceeding between the parties. Further, a Full Court exercising appellate jurisdiction is not a proper tribunal to receive evidence on disputed facts. For these reasons, I refused to abridge the time for the filing of the affidavits since, if filed, I would have exercised the discretion conferred by s.27 of the Federal Court Act against the appellant.
At the time when Clause 38 was first inserted into the Award, the Union must have known of the provisions of Clause 25 and the terms of the Service Agreement with respect to probationary service and the right of termination, during the period of probation, by the giving of one week's notice. The Union should have known that as a general rule, the employment of an officer, once the probationary period had expired, could be terminated on one month's notice only except in those special cases such as misconduct referred to in the Agreement. The Union must have known from the terms of the Award that there was a career structure by which officers could move by incremental steps within grades over a term of years thus giving rise to what is often described as permanent employment. Clause 25 was consistent with the terms of the Service Agreement. Although the agreement did not by express terms state that the employment was "by the month", the existence of Clause 12 of the Agreement made it clear that, except with respect to those on probation, officers were employed by the month in that the Bank could dismiss an employee by the giving of one months' notice. In this regard the Agreement was consistent with Clause 25 of the Award. In law, the effect of Clause 12 of the Service Agreement was that officers were employed by the month. There may have been other agreements between employees and the Bank, but there is no evidence of any such agreements.
Clause 38 was inserted in the Award. The clause accepted the effect of Clause 12 of the Service Agreement. It adopted the phraseology of Clause 25 of the Award which itself is consistent with Clause 12(c)(i) of the Agreement. To terminate the employment the Bank had to give one month's notice "except where otherwise agreed to in writing between the individual bank and the individual officer". There is nothing in Clause 38 to support the construction that the agreement can be effective only when it is entered into at or about the time of the termination of employment but before the notice of termination is given.
Counsel for the Union contended that the Award contained its own dichotomy between engagement and termination. At the time of engagement, there could be an agreement in writing between individual banks and their individual officers under which an officer was employed other than by the month, whether less or more, but that agreement could not affect the termination of employment. At the time of termination different considerations arose. At that stage, it was contended, the parties could terminate the employment by the giving of one month's notice irrespective of whether the engagement was by the week or by a period greater than a month. The only exception to this was by an agreement in writing entered into at or about the time of the termination but before the notice was given.
In submissions, counsel for the Union stressed the facts that Clause 38(A)(d)(i) of the Award was inserted to confer rights upon employees of the banks and that if banks were free to enter into agreements in writing with prospective employees under which the bank could dismiss the employee on a period of notice less than one month, or four weeks, the rights conferred on the employee by Clause 38(A)(d)(i) could be defeated. He contended that such a result was so unfair that the Clause should not be so construed but should be limited to cases where the agreement was entered at or about the time of the giving of the notice but before notice was given. This construction, of itself, gives rise to difficulties in determining what limitation should be placed on the length of the period between the making of the agreement and the giving of the notice. Counsel contended that on any view the contract of employment could not be the source of the agreement under Clause 38(A)(d)(i) no matter how short the period between the making of the agreement for employment and the giving of the notice of termination.
The contentions made on behalf of the Union are rejected. The Court is concerned with a claim under s.178 of the Act. The hearing of the application proceeded on a memorandum of agreed facts. The Service Agreement signed by Ms Guy is before the Court. The agreement is on a printed form which, on its face, is in common use by the Bank when it engages employees. The agreement is in conformity with Clause 25 of the Award. It provides that the employment may be terminated by one month's notice. In the circumstances of the existence of Clause 25 of the Award, which, for practical purposes has been in its present form since 1963, the provisions of the Award which makes provision for an annual salary but paid weekly or fortnightly, the inclusion in the agreement of a specified period of notice of termination removes any doubt as to the notice to be given. The exception with respect to notice during the probationary period is in conformity with Clause 25. In all the circumstances there is nothing before the Court to suggest that the Service Agreement and the terms contained in it represents anything but the normal practice within the banking industry, a practice which has continued from at least 1963.
Clause 38 was inserted into the Award in 1986 with effect from December 1985. There is no evidence before the Court as to why Clause 38(A)(d)(i) was in a form different to the form in the Metal Trades Award. There is a clear inference to be drawn that the Clause 38(A)(d)(i) was framed as it was because of the common practice within the banking industry. This inference is strengthened by the use of the identical phraseology in Clause 25 and Clause 38(A)(d)(i) with respect to agreements in writing. The common practice illustrated by Clause 25 and the Service Agreement was to continue. There is no evidence to suggest that that common practice was to change or that the banks generally were about to engage in draconian activities to defeat the effect of Clause 38(A)(d)(i) by enabling them to give short periods of notice to terminate all contracts of employment.
In my opinion, there is no ambiguity in the wording of Clause 38(A)(d)(i) in its application to the facts of this appeal. It operates upon the agreement in writing signed by Miss Guy when she entered into the employment with the Bank. In conformity with that agreement, the Bank paid one week's salary in lieu of notice in terminating her employment. In so doing the Bank was not in breach of the Award.
I would dismiss the Appeal.
JUDGE2
In this appeal I have had the advantage of reading in draft form the reasons for judgment of Northrop J., which fully set out the salient facts and the relevant award provisions, none of which need be repeated. I agree with the reasons there given for the Court's decision on the hearing of this appeal to refuse to abridge the time, prescribed by Order 52 Rule 36(6) of the Federal Court Rules, for the filing of affidavits.
The language used in clauses 25 and 38A(d)(i) of the Bank Officials (Federal) (1983) Award gives rise to some uncertainty. However, I agree with the learned trial judge, von Doussa J., that:
"... the secondary material on which the applicant seeks to rely does not ... solve the uncertainty. That material comprises the reasons of the Full Bench of the Australian Conciliation and Arbitration Commission in the Termination, Change and Redundancy Case (2 August 1984) 26 A.I.L.R. 227, and the terms of the Award Variation to the Metal Industry Award 1984 which followed."
Because the secondary material does not solve the uncertainty, it is not necessary for me to express any opinion upon the question whether "the reasoning of the Industrial Relations Commission in the Termination, Change and Redundancy Case may be applied by analogy to ascertain the object and purpose of clause 38 ...". During the hearing of this appeal reference was made to a decision of mine in Re The Vehicle Industry - Repair, Services and Retail - Award 1976 (1979) 38 FLR 267 at 273-275. It should be noted that that statement was not necessary to the decision in that matter and appears to have been made without the court having heard any argument that it was not appropriate for the court to take into account a statement by the Full Bench of the Conciliation and Arbitration Commission. (See also Seymour v Stawell Timber industries Pty. Ltd. (1985) 9 FCR 241 at 244, 253-255 and 264-265).
Although the language used in the two clauses is not as clear as it should be, I agree with and adopt, with respect, the following passage in the reasons for judgment of the learned trial judge, dealing with the intention that lies behind the last four lines of clause 38A(d)(i):
"The style of the Bank Officials (Federal)
(1963) Award in clause 25 is to cater for probationary employment and any other engagement otherwise than by "the month" by the words "except where otherwise mutually agreed to in writing between the individual banks and their individual officers". It is the same collocation of words which has been employed in clause 38A(d)(i). In my opinion the proviso inserted by those words in that clause is intended to cater for an officer who, prior to the giving of notice of termination, has agreed to an engagement otherwise than by "the month". ... In my opinion clauses 25 and 38A of the Award must be read together. The proviso in the notice provision in clause 38A(d)(i) is intended to cater for those circumstances where the bank and the officer have agreed pursuant to clause 25 that the engagement and employment shall be otherwise than by "the month".
It follows that, on the facts before the court, the respondent has not breached the award. Accordingly, in my opinion the appeal should be dismissed.
JUDGE3
I have had the opportunity to read in draft form the reasons for judgment of Northrop J. in this appeal. The agreed facts upon which the trial was conducted are set out in those reasons for judgment. So are the relevant provisions of the Bank Officials (Federal) (1963) Award ("the award") and the standard form agreement to which the respondent and Tania Sue Guy were parties ("the service agreement"). Any attempt by me to set out those facts and those provisions would involve unnecessary repetition, and would not enhance the clarity with which they are expressed.
I agree with Northrop J. that this case does not provide an appropriate occasion for exploring the limits of the discretion given by s.27 of the Federal Court of Australia Act 1976 to receive further evidence on the hearing of an appeal. Even if the traditional strictures on the receipt of such evidence are not applicable, it would have been inappropriate in the present case to order the abridgement of time which the appellant would have required to give notice of the further evidence which it sought to introduce. This was because the trial was conducted on the basis of an agreed statement of facts, and it was clear that the respondent would have disputed the existence in its case of the agreement which was said to have been accepted as a fact by the silence of counsel for the banks on the application to vary the award by inserting clause 38 by consent. In the circumstances, it was inappropriate that the Full Court be called on to perform the role of a trier of fact when facts were not tried at first instance. I therefore concurred in the decision on the hearing of the appeal to refuse the appellant abridgement of the time laid down by order 52 rule 36 of the Federal Court Rules for the filing of an affidavit with respect to further evidence.
The question whether there is ambiguity involved in particular words is always one of difficulty. See Printing and Kindred Industries Union of Australia v. Davies Bros. Ltd. (1986) 18 IR 444, at p 449. The argument of the appellant involved a reading down of the words of clause 38 A(d)(i) of the award. In a sense, that argument required the notional insertion of some words into the clause, to confine to a specific set of circumstances words apparently of general operation. It may be that such a process amounts to resolving an ambiguity. For the purposes of this case, I am prepared to assume that it does, and that an ambiguity does exist, as was contended by the appellant and accepted by the learned trial judge.
Unlike Northrop J., but like the learned trial judge, I do derive assistance from reference to the decisions of the Australian Conciliation and Arbitration Commission, pursuant to which clauses dealing with termination, change and redundancy were inserted into a number of awards, and from the form of these clauses. The clause found in the Metal Industry Award 1984 may be taken as typical. Subclause (d)(i)(1) of that clause provides for periods of notice varying from one week to four weeks, in increments of a week each, according to the length of service of a particular employee. The reasons for the adoption of such a system appear in the first of the Commission's decisions dealing with the claim, reported at (1984) 8 IR 34, pp 48-52. In the second decision, reported at (1984) 9 IR 115, at p 122, the Commission refused to allow contracting out of the notice requirements as a general award provision. These decisions established termination, change and redundancy clauses as a standard for all awards. When the parties to the award came to insert clause 38, pursuant to this standard they were faced with a problem. At the time, the only provision in the award which could be characterised as dealing with notice of termination was clause 25, which provided for employment by the month unless otherwise mutually agreed to in writing in an individual case.
It is hard to find the precise meaning which the law attributes to expressions of employment by reference to a period, e.g. employment "by the week", "by the month" and "by the year". Counsel for the appellant contended that those expressions do not refer to the period of notice required for termination of the contract. Given the history of such expressions, they must have had reference either to the period of notice, or the period in respect of which payment was required to be made. The authorities and the commentators suggest that it is possible to have an agreement for periodical employment, subject to specific agreement for a period of notice, or for a pay period, different from the period of employment. See generally Healy v. The Law Book Company of Australasia Pty. Ltd. (1942) 66 CLR 252, Freedland, The Contract of Employment, pp 153-154, Sykes and Yerbury, Labour Law In Australia, Vol. 1, pp 30-37, Macken, McCarry and Sappideen, The Law of Employment, 2nd ed., pp 76-77 and Fridman, The Modern Law of Employment, pp 464-468. If there were agreement as to both of those matters, it is hard to see how the contract of employment could remain one expressed by reference to a period other than the periods agreed for both pay and notice. In the context of the award as it stood before 1986, the expression of employment by the month in clause 25 must have had reference to the period of notice of termination. There were in the award specific provisions dealing with payment. Clauses 6 and 7 provided for annual salary rates. Clause 12 provided for payment weekly or fortnightly, at the option of the bank concerned, and for the manner in which the amounts paid were to be calculated. The only point of having clause 25 must have been to provide for a period of notice, namely one month unless otherwise agreed. The provisions of the service agreement, as a standard form agreement, were consistent with that view. If the standard clause dealing with termination, change and redundancy had been adopted in the award, this general provision entitling employees of banks to one month's notice would have been cut down for all those employees with less than five years' service. Further, it would no longer have been possible for an agreement as to a different period of notice to be made under clause 25. For obvious reasons, the parties to the award chose to avoid these consequences, by substituting for the incremental notice provision in the standard clause a clause consistent with clause 25 of the award. Clause 38 A(d)(i) has the same elements as clause 25, namely provision for one month's (now four weeks') notice and provision for agreement otherwise in writing in a particular case. It has all of the appearances of having been inserted in order to be consistent with clause 25.
At the trial, counsel who then appeared on behalf of the appellant argued that the agreement contemplated by clause 38 A(d)(i) could only be entered into at or after the time when notice of termination was given. On appeal, different counsel put a different argument. It was no longer contended that an agreement for a different period of notice could be entered into after notice had been given. This was no doubt in recognition of the fact that an agreement entered into after notice had been given would not be an agreement to give a lesser or greater period of notice, but an agreement to waive the right to insist on a period of notice already given. The argument put on appeal was that the agreement had to be entered into prior to and in contemplation of a particular proposed termination. In normal circumstances such an agreement would be arrived at immediately prior to the giving of notice. It may be entered into some time before the giving of notice, however, although a specific termination would have to be in prospect. The argument was founded on the proposition that clause 25 of the award was intended to deal with the creation of a contract of employment, and clause 38 with its termination. For the reasons I have given, I cannot accept this argument. It is founded on an erroneous view of the function of clause 25, which did relate to termination.
The concern of the appellant seemed to be that clause 38 A(d)(i) might be used by banks as a means of procuring with all or a majority of their officers and employees agreements whereby they would be liable to dismissal on less than four weeks' notice, at any time during their careers, whatever the length of service involved. The clause is plainly not intended to enable the banks to seek such agreements on a wholesale basis. It preserves as a general rule the period of notice which clause 25 required as a general rule, now modified to four weeks. The making of an individual agreement is obviously intended to be exceptional. If there were evidence of a widespread practice of requiring officers to agree to shorter notice throughout their careers, it is unlikely that the Australian Industrial Relations Commission would countenance such a departure from previous practice, and from the standards laid down in the termination, change and redundancy clauses generally. Clause 38 A(d)(i) provides flexibility for exceptional cases, such as a reduced period of notice during a short probationary period, an extended period of notice for an officer occupying a position of high responsibility, or no termination by notice for an expert engaged for a fixed period. It is not intended to establish a general rule that all officers may be dismissed on less than four weeks' notice at any time if they can be induced to sign an agreement to that effect.
For these reasons, no breach or non-observance of clause 38 A(d)(i) of the award occurred when the respondent dismissed Ms. Guy with one week's pay in lieu of notice. In my view, the appeal should be dismissed.
0