O'Neil v Communications Electrical Plumbing Union No. DCCIV-02-501

O'NEIL v COMMUNICATIONS ELECTRICAL PLUMBING UNION
[2003] SADC 117
Judge Rice
Civil
Introduction

In this matter the plaintiff, Kevin O’Neil (“Mr O’Neil”), claims for a redundancy payment from the defendant, Communications Electrical Plumbing Union (“the Union”). There is no dispute that Mr O’Neil’s contract of employment was terminated on 31st July, 1999. The main issue is whether that contract incorporated a condition or agreement entitling him to a redundancy payment.
Mr O’Neil commenced employment with Telecom. He then obtained employment with a Union as an Industrial Officer. During this and subsequent periods he was on secondment from Telecom pursuant to special leave without pay. The Union by whom Mr O’Neil was employed changed with various amalgamations but, on his case, he was assured that he would not be disadvantaged.
One of the amalgamations led to a change in the title of the position occupied by him from “Industrial Officer” to “Branch Organiser”. Another change effected at the same time (which was 1992) was that his position became an elected position. The scheme for the 1992 amalgamation was such that, although the position of Branch Organiser was an elected position, Mr O’Neil did not have to face an election until 1995 (see D7 - New Rule 83). The defendant conceded that, immediately prior to the commencement by Mr O’Neil in the position of Branch Organiser in 1992, his employment had the benefit of the redundancy agreement, exhibit P2 (TP84).
Mr O’Neil was elected unopposed in July/August, 1995 to the position of Branch Organiser. The tenure of this position was four years. In 1999, the position of Branch Organiser was made redundant. Mr O’Neil was then employed pursuant to a separate contract of employment for 12 months. That contract was not renewed.
Mr O’Neil’s case is that, in preparation for or subsequent to the 1992 amalgamation, he took up the position of Branch Organiser because he was expressly told that he would not be disadvantaged. No mention was made by either party about redundancy. Mr O’Neil’s case is that that assurance picked up the 1992 redundancy agreement, carried through to 1995 and then on to 1999 when his position was in fact made redundant. There was no separate assurance in 1999.
The Union’s case is that when Mr O’Neil took up the two elected positions in 1992 and 1995, these were tenured positions such that each was a new and separate contract of employment that did not pick up the redundancy agreement. The Union argues that these were more than variations of the earlier contract of employment.
I mention at this stage that, in the event that Mr O’Neil’s claim succeeds, it is not disputed that his entitlement is to be calculated on the basis of a salary of $54,845, plus a taxable allowance of $3,955, making a total of $58,800 (see paragraph 14 of the Defence). Interest to the date of judgment would have to be added to that figure.
Mr O’Neil’s employment history and Union amalgamations
To properly understand the issues at trial, it is important to trace the manner in which Mr O’Neil’s position with the Union evolved.
Plaintiff’s case
In 1978 Mr O’Neil commenced employment with Telecom as a tradesman in the engineering workshops (TP18). He was also a member of the Australian Telecommunications Employees Association Union (“the ATEA”) and he would involve himself in the affairs of the Union (TP18).
Whilst in the employ of Telecom, Mr O’Neil believed he was covered by the Australian Telecommunications Commission Employees (Conditions of Redundancy) Award, 1928 (TP48) (see exhibits P8 and P9). Mr O’Neil gave evidence that, in the position he held at Telecom, he was eligible to be a member of the ADSTI, an organisation that was a respondent to the Award (TP55), and was therefore covered by the Award. Mr O’Neil stated (TP49):-
“My understanding is that those – some of these unions that were respondents to that award were classifications that I held in Telecom was covered.”
When Mr O’Neil ceased employment with Telecom he was classified as Tradesperson 1 (TP57) (see exhibit P10).
In 1985, Mr O’Neil obtained employment, on secondment from Telecom, with the ATEA as an Industrial Officer (TP18). It was a secondment pursuant to special leave without pay and that leave was for a finite period (12 months), which was extended from time to time (TP51, 60). At all times he retained his position within Telecom as a tradesman. He had the right to return to that position, or an equivalent position, at any time (TP18, 34, 52). He also had intense involvement with the Union movement and, in fact, had been a job representative in the workplace (TP32). He accepts the proposition that he was well-known within the Trade Union movement (TP32).
Prior to accepting the position, Mr O’Neil had discussions with Union officers in relation to this new employment (TP19, 32, 50). These discussions were with the then Secretary, John Sutton, and the Assistant Secretary, Bob Pomeroy (TP19). During these discussions Mr O’Neil was told that the terms and conditions of the position within the Union were similar to those of his Telecom position. However, there were to be two different aspects; firstly, no overtime would be paid and, secondly, he would not receive a travelling allowance (TP19). It was made clear to Mr O’Neil that he would not suffer any disadvantage by accepting the position (TP19). He subsequently accepted the position.
At the time Mr O’Neil was interviewed for the position, nothing was said in relation to the issue of redundancy (TP33, 35). Mr O’Neil contended that, whilst employed by the Union, an entitlement to a redundancy payment existed by virtue of his conditions of employment with Telecom (TP35). Mr O’Neil believed that the terms of his position with the Union were in accordance with the terms of his employment with Telecom (TP24), save for the two different aspects mentioned above. It was Mr O’Neil’s belief that, whilst employed by the Union, he continued to have the benefit of the redundancy agreement which existed in his Telecom employment (TP24). In fact, nothing was said on the issue of redundancy at any stage throughout the course of his employment with the Union (TP35).
His position as Industrial Officer involved dealing with members’ grievances and complaints, occupational health and safety issues, worker’s compensation, disciplinary mattes and general day-to-day industrial matters (TP19-20). In addition, he undertook “organising” within the Union. In a Trade Union context, “organising” means undertaking recruitment and general duties associated with Union activity (TP20). He believed that he would have been provided with a duty statement outlining his position when he began working with the Union in 1985 (TP36). Whilst employed by the Union he was under the general direction of the Branch Secretary of the ATEA (TP35).
In addition, Mr O’Neil attended Branch council meetings where he gave monthly reports on his activities and addressed any questions from the Branch management committee or Branch councillors at the time (TP20, 33). He held the position of Branch councillor, a position that was disassociated from his position as Industrial Officer (TP20). He was an active and informed member of the Union but not privy to Federal matters (TP33). Mr O’Neil admitted, however, that, to some degree, he was informed about matters that concerned him and the Union (TP33-34).
First amalgamation
In early 1990, there was an amalgamation of the ATEA (Mr O’Neil’s Union) with the Australian Telephone and Phonogram Officers Association. It was put to Mr O’Neil in cross-examination that the amalgamation took place in 1988 to which he agreed. The precise date is unimportant for present purposes. This created the organisation known as ATEA/ATPOA. This amalgamation had minimal effect on Mr O’Neil’s position. His duties were relatively unchanged, the only difference being that his role encompassed not only technical staff but also operating members (TP20, 36). It was the same role but just a different membership. His rate of pay remained the same (TP20), although wage increases were the only variation to the terms and conditions of his employment (TP36).
Second amalgamation
In 1991, discussions took place concerning a further amalgamation with the Australian Postal and Telecommunications Union (TP20-21, 37). The amalgamation did eventuate to form the Communication Workers’ Union (CWU) on 1st August, 1992 (TP36). The amalgamation did not result in any change to Mr O’Neil’s duties. The only significant change was in Mr O’Neil’s title. He went from being an “Industrial Officer” to a “Branch Organiser” (TP21). In addition, he was given a position on the Branch executive. Again he was told he would not be disadvantaged in any way (TP21).
Mr O’Neil had discussions with Gerry Kandelaars (“Mr Kandelaars”) (who at that time became the Secretary of the CWU) with regard to his change in title (TP21). These discussions took place after the amalgamation. Mr O’Neil was told that the only change to his position would be that he would be on the Branch executive and that his duties and his work role would continue (TP22). Nothing was said about his rate of pay, nor did his rate of pay subsequently alter (TP22). There were no discussions relating to a redundancy clause in Mr O’Neil’s contract (TP22). Mr O’Neil believed that there would also have been discussions with Mr Kandelaars leading up to the amalgamation of the Unions with regard to his position (TP42). He could not recall a conversation alleged by the defendant wherein Mr Kandelaars had asked him whether he had a problem converting to Branch Organiser. He denied an alleged conversation whereby Mr Kandelaars was said to have told him that the Union did not have to go down the path of changing the Industrial Officers to elected Organisers but that he could remain as an employed Industrial Officer (TP43). The case for the Union was that Mr Kandelaars said during that conversation that Mr O’Neil could remain an Industrial Officer because, even under the changed rules, the organisation still had the power to employ Industrial Officers, but Mr O’Neil contended that this was not discussed with him (TP43). In addition, Mr O’Neil could not recall Mr John Lee (who was a member of the Branch council in the period leading up to the amalgamation) being present when Mr Kandelaars made these comments (TP43-44). The Union did not call Mr Lee. According to Mr O’Neil, there was never an occasion when Mr Kandelaars called him into his office for the purpose of discussing his terms of employment (TP59). Mr O’Neil did, however, recall the terms of his employment being discussed at Branch council meetings, but it was his evidence that this would have taken place some time in 1985 (TP59) and not during the time of this amalgamation.
The only other issue raised in these discussions between Mr O’Neil and Mr Kandelaars was that, some time in the future (1995), there would be an election held for the position of Branch Organiser, which would be for a fixed four-year term (TP22). Following this discussion (or these discussions), Mr O’Neil agreed to the change in title. He received no written correspondence after acceptance of the change in title (TP25). This issue was addressed, however, at meetings of ATEA/ATPOA which Mr O’Neil attended, as the amalgamation was the subject of extensive discussions within the Union before August, 1992 (TP37). These discussions, in particular, addressed the position of Branch Organiser, as the Australian Postal and Telecommunications Union had elected Organisers whereas ATEA/ATPOA had appointed Industrial Officers (TP37). In fact, the role of Organiser did not exist in the South Australian Branch of the ATEA/ATPOA. Changes were therefore made to the rules of the ATEA/ATPOA in respect of this change in title and also the proposed election process (TP38–41, 46).
At all times, Mr O’Neil’s entitlement to return to his position within Telecom remained (TP22) and that was the situation until some time in 1999 (TP51). Mr O’Neil believed that there would be no change in the conditions appertaining to the alleged redundancy agreement in his contract (TP25). At the time, the redundancy clause was a matter of importance to him, as he would have gone back to his position with Telecom if he thought that he would lose the benefit of the redundancy agreement (TP25).
At some time in 1993, the Federal office of the Union prepared a Redundancy Handbook (see exhibit P2), and the provisions of the handbook were backdated to apply from 31st January, 1992 (TP60-62). As part of Mr O’Neil’s duties, he would hand out the Redundancy Handbook and discuss its contents with members from time to time (TP26). He believed, more importantly, that the handbook applied to him in the same way it applied to other members (TP27, 60-61). There were no discussions between Mr O’Neil and anyone at the Union as to whether the provisions of the handbook applied to his employment with the Union (TP51). As at 31st January, 1992, the date from which the provisions of the handbook applied, Mr O’Neil was employed by the ATEA/ATPOA. Even when the Union amalgamated to form the CWU, there was still no indication as to whether the provisions relating to redundancy applied to Mr O’Neil’s contract of employment with the Union (TP51). He was not aware of any changes to the handbook throughout his employment with the Union (TP27). The defendant formally conceded that, at least from the beginning of 1992, a redundancy term was imported into Mr O’Neil’s contract of employment (TP84), thereby admitting paragraph 4 of the Statement of Claim. Paragraph 4 reads as follows:-
“4.It was a term of the applicant’s contract of employment that, save for salary, overtime and travel allowance, the conditions of employment applying to Telecom employees from time to time were to apply to the applicant.”
Prior to the introduction of the Redundancy Handbook, in respect of employees of Telecom who were not, or may not have been, covered by the redundancy award of 1978, Telecom voluntarily applied redundancy provisions known as the RAGE provisions (TP52-53, 58) (see exhibits P11, “Guidelines for Redundancy Situations in Australian Government Employment”, and P12).
Third amalgamation
The CWU amalgamated with the Communications Electrical Plumbing Union (“CEPU”) to form the defendant. That occurred either on 1st August, 1994 (as admitted by the Amended Defence) or 1996 (as alleged in the Statement of Claim). It has not been suggested that the fact of that amalgamation effected any change relative to these proceedings.
Branch Organiser election
In mid-1995, the forecasted election for the position of Branch Organiser occurred (TP27). Mr O’Neil nominated for, and won, the position. He was the only person to apply (TP27). The position was for a fixed four-year term, which was due to expire on 31st July, 1999 (TP27). At the time nothing was said to him about his contract of employment. After the election, he continued to undertake the same duties as before (TP28).
In cross-examination, Mr O’Neil was asked whether he had the understanding that, if he succeeded at the election, a new term of office of Branch Organiser would commence (TP42). It was Mr O’Neil’s belief that his tenure of employment would continue (TP42) and that it did not come to an end when he had to face an election in 1995 (TP45). Mr O’Neil was not given anything in writing to suggest that there was any change in his employment or that there was cessation of his employment as it stood prior to the election (TP42).
Six months prior to the expiration of his four-year term (that is, in early 1999), Mr O’Neil received information from Mr Kandelaars that the Branch was in financial trouble due to loss of members and his position would, therefore, be abolished (TP28-29). It was suggested that this discussion took place on 3rd May, 1999 as Mr O’Neil subsequently received a letter on or about 10th May, 1999 referring to a discussion on 3rd May, 1999 relating to this very issue. The letter also addressed a recommendation by Mr Kandelaars to the Branch committee of management concerning a new position of Branch Industrial Officer, which would be for a limited twelve-month term of office (see exhibit P3) (TP29-30). Mr O’Neil did make application for this new position (see exhibits P4 and P5), and successfully took up the position after 31st July, 1999 for twelve months when his four-year elected term expired with the Union (TP31). The tenure of that position was not extended past 31st July, 2000 because of the finances of the Union.
Mr O’Neil is currently self-employed. He undertakes building maintenance and general repairs.
Defence case
Mr Kandelaars - background
In 1972, Mr Kandelaars was employed by the then PMG Department, which subsequently became Telecom (then Telstra) (TP65), as a telecommunications tradesman. He became a member of the organisation that preceded the ATEA, namely, the Postal Telecommunications Technicians Association (“PTTA”). Due to award variations, he became a Telecom technician in 1978. Through some further training he attained the position of technical officer in 1981 and then progressed to a Telecom Technical Officer Grade 2 in about 1983 in what was Traffic Engineering. He subsequently moved to a senior technical officer in Telecom Australia in Forward Planning in 1986. He took leave of absence without pay to take on the duties of Branch Secretary of the Union in 1992, as he was elected to the first term of Branch Secretary of the CWU. He took on the role just prior to the amalgamation on an acting basis because the then Secretary had resigned and he filled the vacancy from 5th July, 1992. Mr Kandelaars remained in that position until the close of business on 18th June, 2003 (TP65-66).
In 1985, the Industrial Officer’s position was filled by Bob Pomeroy (TP66), but he subsequently resigned to become the Assistant Secretary of the Branch, leaving the position of Industrial Officer vacant. The position was advertised and, following the interview process, Mr O’Neil was successful and appointed to the position (TP67).
Mr Kandelaars, like Mr O’Neil, had been active within the Union movement, at least in relation to his own industry. He first became a member of the then Branch Council in about 1973 and subsequently held the position through to 1986, when he won the position of Branch Vice-President of the ATEA in a contested election (TP67). Mr Kandelaars’ duties included assisting members on the job as a job representative (TP67).
In regard to the Telecom Award of 1978 (see exhibit P8), Mr Kandelaars gave evidence that ATEA were not respondents to that Award. Whether members of specific organisations were covered by the Award came down to whether the coverage for those organisations actually covered the designations within Telecom (TP69-70). Mr O’Neil made reference to the ADDSTE (Australian Association of Drafting Supervisors) (Mr O’Neil referred to this organistation as ADSTI) as being the organisation that covered his designation under the Award. According to Mr Kandelaars, the ADDSTE covered what would be referred to as drafting officers or foremen (TP70). It was Mr Kandelaars’ evidence that normally a lower tradesman level position, such as the one held by Mr O’Neil, would have been covered by the ATEA or AMWU (Australian Metal Workers Union), both organisations not being respondents to the Award (TP70). It is important to note that the ATEA chose specifically not to be respondents to the Award and that they had never responded to any redundancy provisions until there was an agreement reached in late 1991/early 1992, the Award later being ratified in 1993 (TP70). Prior to this, the issue of redundancy was dealt with via the RAGE guidelines, although, at the time, no formal redundancy agreement was in place within Telecom (TP71). The RAGE guidelines were being applied to voluntary retrenchment. In effect, there were no Award provisions in place for forced redundancies (TP71). For this reason the agreement of 1992 was quite contentious amongst members, because it had a provision that allowed for forced retrenchment (TP72).
Mr O’Neil’s appointment to the Union

Mr Kandelaars was not directly involved with Mr O’Neil’s appointment to the Union, however, being a member of the Branch Council at the time, he contended that he would have been part of the endorsement process of that selection (TP72) once the decision to employ Mr O’Neil had been made. At the time the Branch Council resolved to employ Mr O’Neil, there were no discussions about redundancies nor were there any specific discussions about employment conditions (TP76). It was understood that Mr O’Neil was coming from Telecom on the basis of leave without pay from that organisation, and that leave was being extended from time to time (TP76). At the time, Mr O’Neil was the only Industrial Officer in the ATEA in South Australia (TP76).
First amalgamation
The defendant contended in its Amended Defence that the amalgamation occurred in 1988 (TP76). The amalgamation did not influence Mr O’Neil’s employment to any great degree. It merely extended the scope of the people with whom he might deal (TP76). His terms and conditions of employment continued on as before and there was no break in his continuity of service.
According to Mr Kandelaars, Mr O’Neil’s duties as an Industrial Officer included assisting members with issues that related to their employment (TP77). He had primary responsibility for worker’s compensation and occupational health and safety; in fact, he was considered the Branch expert in that area (TP77). In addition, he had responsibility for members who were essentially the trades and technical members in Australia Post (TP77), as well as primary responsibility for people in the Kidman Park workshops of Telecom (TP77). Mr O’Neil was required to report to the Branch Secretary for day-to-day duties (TP77).
Second amalgamation - Branch Organiser election
The actual amalgamation took place on 1st August, 1992 (TP78). There were discussions between the ATEA/ATPOA and the APTU prior to the amalgamation (TP78). According to Mr Kandelaars, there had been formal discussions about this proposal back in 1990, even prior to that, and as was stated “the agenda for amalgamation with the APTU had been there for a long time” (TP78, 85).
One of the issues discussed prior to amalgamation was the role of Organisers in the proposed amalgamated body (TP78), as the APTU had elected members whereas the ATEA/ATPOA did not (TP85). An agreement was reached that the new organisation would have elected Organisers in preference to Industrial Officers. The difficulty for the Union was that the ATEA/ATPOA only had the position of Industrial Officer (TP79). In order to alleviate this problem, consideration was given to changing the rules of the ATEA/ATPOA at the Federal Conference in October, 1991 (TP79, 85).
In November, 1991, as a result of the discussions at the Federal Conference, the Branch Council met to consider the resolutions that had been passed at the Federal Conference (see the resolutions of Federal Conference Minutes of Meeting - exhibit D13) (TP85) for ratification. The resolutions, in part, dealt with the issue of Organisers (TP80, 85). It was decided that the title of “Industrial Officer” would be changed to “Branch Organiser”. In addition, to ensure that the Organisers had a term of office, they were given surety from the time the rule was subsequently registered in 1992, to 1995 (TP80). In 1995, an election would be held for the position of Branch Organiser (TP81). The registrations of the rules were some time prior to the amalgamation date as the rules were done under the ATEA/ATPOA.
Mr Kandelaars is certain that he would have had discussions with Mr O’Neil about the proposed changes to the position of Industrial Officer prior to the amalgamation taking effect (TP86). Mr Kandelaars was unable to say whether this was a series of conversations or just one (TP86), but he believed that they may have been in the context of a Branch executive meeting. In addition, he surmised that the conversations may have taken place in 1991 and could have occurred at the Union Branch office on South Terrace (TP92).
Mr Kandelaars recalled saying to Mr O’Neil words to the effect “You know it is proposed to change the position from Industrial Officer to Organiser; you know that is going to be an election issue. Do you have a problem with that, because we do not have to go down that path” (TP87). He believed he told Mr O’Neil that the option to remain an Industrial Officer still remained (TP87). It was Mr Kandelaars’ belief that the Union did not have to create the position of Organiser; they could have maintained an Industrial Officer (TP88). This could have been achieved by going to a divisional conference and arguing that, rather than having a full-time Organiser, the Union would maintain an Industrial Officer because that was the desire of the employer (TP93) (see exhibit P1, document 4, rule 55, Rules of the Amalgamated Organisation CWU). Mr Kandelaars denied that his explanations of this discussion (or these discussions) were inconsistent with the proposed amendments that had been adopted by the Federal Conference (TP92).
The day-to-day duties of an Organiser, as opposed to an Industrial Officer, were similar (TP88). The main difference was that an Organiser was subject to an election and could lose such election and be out of office, whereas the Industrial Officer’s terms of employment were subject to engagement by the Branch committee of management (TP88). Another difference between the two positions was the way in which Industrial Officers and Branch Organisers could be removed from office (TP88‑89).
As far as Mr Kandelaars could recall, there were no discussions with Mr O’Neil in relation to the issue of redundancy at any time from 1995 right up until 1999.
In approximately 1998, the Branch addressed the question of its financial ability to maintain Mr O’Neil’s position (TP90). Mr Kandelaars, at one point, made some recommendations. He reported that the Union could not sustain four full-time positions. It was Mr Kandelaars’ view that, looking four years in advance, the Union could only go forward with two full-time officials, a Branch Secretary and a Branch Assistant Secretary (TP90). He further recommended that the employment of an Industrial Officer would be considered subject to finances (TP90).
In relation to the position of elected Organiser, the Union went to a divisional conference where, in essence, the position of Branch Organiser was abolished (TP90‑91). Mr O’Neil was advised that his term of his employment would cease on 31st July, 1999. The Union indicated that they would be advertising a new position of Industrial Officer on the basis of a twelve-month term, reviewable three monthly (TP91). The Union subsequently advertised the position. Mr O’Neil applied and was appointed to the position. He was the only applicant (TP91).
Arguments of the parties
The plaintiff’s case is that, in the discussions in 1992 leading up to the amalgamation that led to the formation of the CWU, he was told his duties and work role would continue once the amalgamation was effected. He was told that the position with the new title of “Branch Organiser” was to be an elected position with a four-year term. No such election was to take place until 1995. Essentially, it was to be a title change from “Industrial Officer” to “Branch Organiser”. The plaintiff’s case is that that was all it was, with no change to duties or role and that it carried with it a redundancy clause. The advantage was that he had job security until the election in July, 1995; the downside was that he ran the risk of not being elected. His job security was only at risk pursuant to the disciplinary rules of the Union.
I mention again a critical factor in the defendant’s eventual approach to this case, namely, that, as at 1st January, 1992, the plaintiff’s term of employment with the defendant included the redundancy agreement applicable to Telecom workers (see exhibit P2).
In essence, the plaintiff contends that the redundancy agreement continued with the new title because, upon an objective assessment of the discussions that took place, there being no change to duties or role, the situation continued as before. It must be acknowledged that there was no express or implied reference to redundancy. It passed unremarked.
The Union contends that the position of elected Branch Organiser had two finite and separate periods of employment, into neither of which was a redundancy agreement imported because the position was a new position with a new employment contract for each period. In that situation, the abolition of the position of Branch Organiser, by operation of a change of rules in the organisation, did not give rise to an obligation to make a redundancy payment.
The Union further contends that, once Mr O’Neil occupied the position that carried the title of “Branch Organiser” (in each finite period), he became an officer of the Union whereby the duration of the employment is governed by the rules. Mr O’Neil was also required to undertake additional duties. It was contended that the rules of the Union governed the terms of his employment such that his employment by the Union was fundamentally different than before and amounted to a different contract of employment. For example, the plaintiff’s employment could not be terminated by “reasonable notice”, whereas previously it could have been.
Particular reliance was placed on the two finite periods which, when they came to an end in accord with the rules, so also did the employment contracts. There was no basis to infer that there was an implied term for redundancy.
Yet further, the Union relied upon the evidence of Mr Kandelaars to show that Mr O’Neil was aware of the switch to a new contract position which could be avoided if the position of Industrial Officer was retained.
Findings - discussion
I find that, as of January, 1992, the Telecom redundancy agreement applied to the plaintiff. This was prior to the amalgamation that resulted in the formation of the CWU. That amalgamation took effect from 1st August, 1992.
I find that, in late 1991 or early 1992, in the lead-up to that amalgamation, there were discussions between Mr O’Neil and Mr Kandelaars concerning the title of Mr O’Neil’s position in the new Union. Mr O’Neil was told that the title of the position would change from “Industrial Officer” to “Organiser” or “Branch Organiser” and that he “....wouldn’t be disadvantaged in any way” (TP21). Mr O’Neil was told that his duties and work role would continue and that he would be on the Branch executive. Nothing was said about rates of pay or redundancy.
Obviously, Mr O’Neil would need to be told whether the new title involved any change in his duties or responsibilities, and this was conveyed to him. The remaining matters about which Mr O’Neil may have been concerned were dealt with in a compendious way when he was told he would not be disadvantaged in any way. That having been said, further discussion was unnecessary as to the terms of employment.
I find that neither party turned its/their mind to the question of redundancy. Had the question expressly arisen, I find that, not surprisingly, Mr O’Neil would have ensured that his redundancy entitlements were preserved. I accept that if they had not been preserved he would have returned to Telecom.
I find that, at some stage (late 1991 or early 1992), Mr O’Neil was told that the position of Branch Organiser was an elected position but that there would not be an election until July, 1995. (From 1992 until 1995 Mr O’Neil was deemed to occupy the office of Branch Organiser until the first elections for Branch Organiser in 1995: see P3 - New Rule 83.) Mr O’Neil was told that the elected position was for a four‑year term, that is, from July/August, 1995 until July/August, 1999. Mr O’Neil was elected unopposed. Nothing was said about his employment and he continued to perform the same duties.
I find that the position of “Branch Organiser” was abolished as of 31st July, 1999, in circumstances normally giving rise to a redundancy entitlement (see The Queen v The Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-operative Limited and Others (1977) 16 SASR 6 at 8 and Mr Kandelaars at TP90-1).
I find that Mr O’Neil’s contract of employment with the Union in 1991 continued through 1992 until 31st July, 1995 and then continued through to 31st July, 1999. Although there were some variations, it continued through as the same contract. The variations were not fundamental. It is true that some of Mr O’Neil’s terms of employment are provided for in the rules of the Union, but that is not definitive of the matter when it clearly fails to provide for those terms in any comprehensive manner. I particularly rely on the fact that Mr O’Neil was told that he would not be disadvantaged. In the particular and unusual circumstances of this case that assurance picked up the earlier redundancy agreement. The contract included a redundancy entitlement which crystallised upon the abolition of the position on 31st July, 1999. He was entitled to be paid the equivalent of 47 weeks pay.
I find for the plaintiff and award him $53,146.00. He has an entitlement to interest upon that sum (see District Court Act, s.39(2)(b)). The date upon which the liability to pay the amount fell due was 1st August, 1999. The period of the entitlement is from 1st August, 1999 to the date of judgment, namely, 8th August, 2003. The appropriate rate of interest is 6.5 per cent (Third Schedule, Supreme Court Rules). The interest amounts to $13,884.00.
There will be judgment for the plaintiff for $67,030.00 inclusive of interest.

[2003] SADC 117

8 August 2003