Perry v Commonwealth of Australia

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FEDERAL COURT OF AUSTRALIA

Perry v Commonwealth of Australia [2017] FCA 943

File number: VID 781 of 2014
Judge: TRACEY J
Date of judgment: 18 August 2017
Catchwords:

CONTRACTS – whether contract between the applicant and the Commonwealth – whether Commonwealth breached that contract by failing to pay the applicant a certain amount upon voluntary retrenchment – whether payment of such an amount was provided for in express contractual terms contained an information booklet – whether such contractual terms were to be implied – where booklet provided to the applicant when employed by the State of Victoria as a meat industry inspector – where the applicant subsequently accepted an offer to transfer to Commonwealth employment

INDUSTRIAL LAW – whether the alleged contractual terms constituted a “safety net contractual entitlements” under s 542 of the Fair Work Act 2009 (Cth)

Legislation:

Administrative Arrangements Act 1987 (Cth) s 11(7)

Conciliation and Arbitration Act 1904 (Cth) s 41A

Fair Work Act 2009 (Cth) ss 12, 61(1), 61(2), 61(2)(i), 542, 543

Federal Court of Australia Act 1976 (Cth) s 21

Meat Inspection Act 1983 (Cth)

Public Service Act 1922 (Cth) Pt III, Div 9A, ss 7(1), 7(1)(b), 81A, 81B, 81B(1), 81B(5)

Superannuation Act 1976 (Cth)

Abattoir and Meat Inspection (Arrangements) Act 1987 (Vic) ss 5, 6, 7

Public Sector Superannuation (Administration) Act 1993 (Vic)

Public Service Act 1974 (Vic)

State Superannuation Act 1988 (Vic)

Superannuation Act 1958 (Vic) ss 35, 35(1)
Cases cited:

Atco Controls Pty Ltd (In liq) v Newtronics Pty Ltd (Receivers and Managers Appointed) (2009) 25 VR 411; [2009] VSCA 238

Chapman v Commissioner, Australian Federal Police (1983) 50 ACTR 23

Chapman v Reilly [1985] FCA 185

Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35

Director-General of Education v Suttling (1987) 162 CLR 428

Toll (FGCT) Pty Limited v Alphapharm Pty Limited  (2004) 219 CLR 165; [2004] HCA 52
Date of hearing: 15 and 16 June 2016, 5 July 2016
Date of last submissions: 8 July 2016 (Applicant)
Registry: Victoria
Division: Fair Work Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 104
Counsel for the Applicant: Mr L Armstrong QC with Mr T Chalke
Solicitor for the Applicant: Charles Morgan & Associates
Counsel for the Respondent: Mr T Howe QC with Ms K Bennett of the Australian Government Solicitor
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

VID 781 of 2014
BETWEEN:

PETER DAVID PERRY

Applicant
AND:

COMMONWEALTH OF AUSTRALIA

Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

18 AUGUST 2017

THE COURT ORDERS THAT:

1.The application be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

TRACEY J:

  1. In 1988 meat inspection services which were formerly provided by the State of Victoria were transferred to the Commonwealth.  Meat inspectors who were employed by the State were offered equivalent employment in the Commonwealth public service.  The applicant, Mr Peter Perry, was one of those inspectors.

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Details
Case
[2017] FCA 943
Decision Date

CaseChat Overview and Summary

Perry v Commonwealth of Australia was a case heard by the Federal Court of Australia that revolved around a dispute regarding the terms of employment between the applicant, Mr. Perry, and the Commonwealth of Australia. Mr. Perry, who had been employed by the State of Victoria as a meat industry inspector, claimed that the Commonwealth breached a contractual obligation by failing to pay him a certain amount upon his voluntary retrenchment. He argued that the payment was stipulated in an information booklet provided to him when he was employed by the State of Victoria, and that these terms should be implied when he transferred to Commonwealth employment.

The central legal issues in this case involved whether an enforceable contract existed between Mr. Perry and the Commonwealth, and if so, whether the Commonwealth breached this contract by not paying him the specified amount upon retrenchment. Additionally, the court had to determine if the alleged contractual terms constituted "safety net contractual entitlements" under section 542 of the Fair Work Act 2009 (Cth). This section of the Act pertains to the rights of employees when transitioning from one employer to another within the public sector.

The Federal Court examined the various documents and statutory provisions that governed the conditions under which meat inspectors transitioned from State to Commonwealth employment. The court found that while the information booklet did provide details about the conditions of service, there was no explicit contractual obligation for the Commonwealth to pay Mr. Perry a certain amount upon retrenchment. Furthermore, the court determined that the terms outlined in the booklet were not to be implied in the employment contract with the Commonwealth. As a result, the court held that Mr. Perry's application was without merit and dismissed it with costs.

Orders

Orders of the court

1. The application be dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

In order to appreciate how these issues arose it is necessary to recount, in some detail, the circumstances in which the alleged contractual arrangements were said to have been negotiated and perfected, examine the documents which explained the arrangements and to notice various statutory provisions which had a bearing on the conditions on which the meat inspectors moved from State to Commonwealth employment.THE BACKGROUND FACTS Mr Perry commenced employment as a meat inspector with the State of Victoria in 1985. In that year he began making contributions to a superannuation fund operated by the then State Superannuation Board of Victoria. The operation of the fund and the superannuation scheme of which Mr Perry was a member, was, at that time, governed by the Superannuation Act 1958 (Vic) (“1958 Act”). The particular scheme of which Mr Perry was a member was known as the “revised scheme”. At the time of his retrenchment in 2010, Mr Perry was still member of the revised scheme, although the legislation which governed it had changed. For convenience in these reasons, the fund to which Mr Perry made contributions will be referred to as “the Victorian State superannuation fund” and the scheme of which he was a member will be identified as “the Victorian State revised superannuation scheme”. In 1987, following an agreement between the Commonwealth and Victorian State governments (“the 1987 Agreement”), the Victorian Parliament passed the Abattoir and Meat Inspection (Arrangements) Act 1987 (Vic) (“the Arrangements Act”). Section 5 of the Arrangements Act authorised the responsible State Minister to make arrangements with the Commonwealth for the inspection of meat in Victoria. That Act also contemplated, in s 5 when read with s 6, the making of arrangements for meat inspectors who were employed by the State to be offered employment by the Commonwealth. It also provided, at s 7, that a State inspector who transferred to the Commonwealth service could elect to continue his or her membership with a Victorian State superannuation scheme. In order to facilitate the transfer of the employment of meat inspectors from the State to the Commonwealth a series of meetings took place which were attended by representatives of the Commonwealth, the State, and the union then representing meat inspectors, the Victorian Public Service Association. These negotiations led to agreement as to the conditions of employment to be offered to inspectors who chose to transfer to the Commonwealth public service. The agreed conditions were recorded in a document entitled “Transfer of the Victorian Meat Inspection Service to the Commonwealth: Conditions of Service Package” which became known as “the Blue Book”. There were at least two versions of the Blue Book. It is the final version, dated January 1988, which Mr Perry relied on in order to establish his contractual claims. The introduction to the Blue Book explained its purpose as follows:On 12 November 1987 the Victorian Parliament passed the necessary legislation to transfer the Victorian domestic meat inspection service to the Commonwealth.As a result of that announcement, discussions have taken place between Victorian and Commonwealth officials and with both State and Federal staff associations. These discussions have centred on the details of the transfer arrangements.As a result of these discussions many aspects of the transfer have now been resolved.This booklet sets out the details of the CONDITIONS OF SERVICE you currently have in the State Service and those you will enjoy as Commonwealth employees.All salary, travel and other allowance rates in this book have been recorded as those existing at 1.1.88. Those you ultimately receive will, of course, include any subsequent increases.The information provided here must be read in conjunction with the associated booklet “THE INFORMATION PACKAGE” which covers those matters which have to do with the actual day to day administrative aspects of your employment and the operation of the Commonwealth’s Inspection Service, eg training, leave rosters, key contact points in the DPI Victorian Regional Office, how the organisation actually works, etc.In addition to these two booklets, we also intend to conduct a series of information sessions for all Victorian State staff at a number of centres throughout the State. At these sessions, details of which will be advised early in 1988 we will provide people from the Commonwealth, the State and staff associations, who can expand on the written information in these two booklets and answer your questions in detail.These conditions have been negotiated as a ‘package’ – there are pluses and minuses. However, on balance it is the considered view of the Commonwealth and Victorian officials charged with the responsibility of negotiating the transfer that the ‘package’ is a balanced one; that is, no less favourable than those they presently enjoy. It is our understanding that the staff associations have accepted the ‘package’ on this basis.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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