Raisanen v Special Broadcasting Services Corporation
[2001] FCA 1525
•26 SEPTEMBER 2001
FEDERAL COURT OF AUSTRALIA
Raisanen v Special Broadcasting Services Corporation [2001] FCA 1525
HEIJA VIOLA RAISANEN v SPECIAL BROADCASTING SERVICES CORPORATION
N 1100 OF 2000
EMMETT J
26 SEPTEMBER 2001
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1100 OF 2000
BETWEEN:
HEIJA VIOLA RAISANEN
APPLICANTAND:
SPECIAL BROADCASTING SERVICES CORPORATION
RESPONDENTJUDGE:
EMMETT J
DATE OF ORDER:
26 SEPTEMBER 2001
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1100 OF 2000
BETWEEN:
HEIJA VIOLA RAISANEN
APPLICANTAND:
SPECIAL BROADCASTING SERVICES CORPORATION
RESPONDENT
JUDGE:
EMMETT J
DATE:
26 SEPTEMBER 2001
PLACE:
SYDNEY
REASONS FOR JUDGMENT
EMMETT J
This is an application under s 127A(2) of the Workplace Relations Act 1996 (Cth) (“the Act”). The Act was originally enacted as Act No 96 of 1988 and it has been substantially amended since its enactment as the Industrial Relations Act 1988 (Cth). Under s 127A(2), application may be made to the Federal Court of Australia to review a contract of a certain category on the ground that the contract is unfair. Under that provision, “contract” relevantly includes any collateral arrangement relating to a contract for services that is binding on an independent contractor and relates to the performance of work by the independent contractor. Under s 127A(5), if the Court forms the opinion that such a ground is established in relation to the whole or the part of a contract, it must record its opinion stating whether the opinion relates to the whole or a specified part of the contract. Under s 127B(1), if the Court records an opinion under s 127A in relation to a contract, it may make an order varying the contract.
From June 1988 to 30 August 1992, the applicant was engaged by the respondent, Special Broadcasting Services Corporation (“SBS”), as an independent contractor in the position of radio broadcaster in the Finnish language program broadcast by SBS. On 27 June 1992 the applicant applied for two positions with SBS in relation to that Finnish language program. The positions were Broadcaster Journalist Level 2 and Journalist Level 1. The applicant was furnished with several documents described as follows:
· SBS Radio 2EA Recruitment Information Kit,
· Selection Criteria and Duty Statement relating to Broadcaster Journalist Level 2,
· Positions Available Finnish Language Program.
By letter of 30 June 1992 SBS confirmed an invitation to the applicant to attend an interview which was fixed for 7 July 1992. The applicant claims that she and SBS were parties to an arrangement that she would be granted an interview and that selection to fill the posts for which she applied would be in accordance with the criteria set out in the documents referred to above. The applicant says that she had an expectation that the criteria would be applied fairly. She claims that that arrangement was a collateral arrangement relating to the contract that she had entered into with SBS in June 1988.
THE PROCEEDING AND THE APPLICANT’S CLAIMS
In her further amended application the applicant seeks the following orders.
“1.An order declaring that the contract entered into between the Applicant and the Respondent on 21 June 1988 and which was terminated on 31 August 1992 was unfair.
2.An order declaring that the interview conducted on 7 July 1992 for the position of broadcaster/journalist was a collateral arrangement to the contract for work in an industry referred to in 1 above and that the interview is within the terms of 127A(1)(b) of the Workplace Relations Act 1996.
3.An order declaring that the collateral arrangement was unfair in that the interview process did not consist of a fair assessment of the applicant’s qualifications for the position of broadcaster/journalist as against those of the successful applicant, Mr Karl Mattas.
3a.An order declaring that the collateral arrangement was unfair in that the interview process did not result in a fair assessment of the Applicant’s qualifications for the position of a broadcaster/journalist as against those of the successful applicant, Mr Karl Mattas.
4.An order that the contract be varied so that on its termination the Respondent to pay to the Applicant the amount of $35,000 being 1 years salary of the position referred to in 2 above.
5.In the alternative to Order 4 an order that this honourable Court vary the contract and order the Respondent to pay an amount of money to the Applicant which it considers just in all the circumstances of the case.
6.An order that the Respondent pay the Applicant’s costs of an incidental to these proceedings.”
In her further amended statement of claim the applicant alleges that the interview of 7 July 1992 was a collateral arrangement within the terms of s 127(1)(b) by reason of the following matters:
(i)the applicant was granted the interview because of her work with SBS between 1988 and 1992;
(ii)the applicant was contracted by SBS at the time of the interview;
(iii)the applicant was paid compensation when she did not get the job for which she applied.
The statement of claim alleges that the so-called collateral arrangement was unfair in operation and in its result. The allegation is particularised as follows:
“(i)The Applicant had been contracted in the position of radio broadcaster in the Finnish language for a period of four years.
(ii)Finnish is the Applicant’s mother tongue.
(iii)The Applicant had demonstrated experience in preparing and presenting radio programs specifically planning, research and script preparation and announcement.
(iv)The successful applicant was not proficient in the Finnish language at the time of his appointment.
(v)The successful applicant had never demonstrated his ability to prepare and present radio programs of the type envisaged.
(vi)The successful applicant’s experience had been in the area of film editing and as a studio technician.
(vii)The Applicant was never given access to her personnel file to see how her performance in the interview was perceived.
(viii)The Applicant’s offer to show the interviewing panel her certificates in respect to education and qualifications was rejected.
(ix)The Applicant’s request to repeat the interview was rejected.
(x)To the best knowledge of the applicant, no member of the interviewing panel contracted any of the referees nominated by the Applicant.
(xi)Criterion Number 1, was applied differentially by the interviewing panel as between the Applicant and Mr Mattas to the disadvantage of the Applicant. Such differential application being unfair.”
Counsel for the applicant contended that one of the reasons she was granted the interview was as a result of the work that she had done under the contract that had been in force since 1988. She was granted the interview because she had experience with SBS in relevant roles. Thus, it was said, there was a connection between the interview and the applicant's past work with SBS. What caused her to be granted the interview was, in part, her past experience. Accordingly, so it was said, the interview was a collateral arrangement relating to her existing contract. The collateral arrangement was that she would be granted an interview and that selection to fill the post for which she applied would be in accordance with the criteria stated in the documents to which I have referred. It was said that the applicant had a reasonable expectation that those criteria would be applied fairly.
The applicant also claimed that she had an expectation that SBS would follow its charter, as provided in s 6 of the Special Broadcasting Service Act 1991 under which SBS is formed. Section 6 provides:
“The principal function of SBS is to provide multilingual and multicultural radio and television services that inform, educate and entertain all Australians, and, in doing so, reflect Australia's multicultural society.”
The applicant's complaint is that the alleged collateral arrangement was unfair. The core of the complaint is that the interview process resulted in the appointment of Mr Karl-Julius Mattas to a position with SBS instead of the applicant. It was said that Mr Mattas is a person with inferior skills in the Finnish language. On the other hand, the applicant's skills were not properly taken into account or tested in connection with her application. The unfairness was said to be that a person who did not have the basic requirement for the position for which the applicant had applied, namely, skill in the Finnish language, was appointed to that position in circumstances where the applicant was not tested as to her skill in the Finnish language. Further, it was said that Mr Mattas did not meet one of the criteria against which the applications were expected to be judged.
FACTUAL BACKGROUND
HISTORY OF SBS
Radio stations 2EA and 3EA, which eventually became known as SBS Radio, commenced operations in 1975 and were initially staffed on a voluntary basis. On 1 January 1978 SBS was established by the Commonwealth Government. From that time the language programs broadcast by SBS Radio were prepared and broadcast by broadcasters, journalists and co-ordinators who were engaged as independent contractors on a fee for service basis. Following a negotiated restructuring those staff were progressively replaced from about 1986 with broadcasters and/or journalists employed under the Public Service Act 1922 (Cth).
In 1979 an association had been established to represent the interests of SBS Radio broadcasters, journalists and co-ordinators in determining the rates of payment for their services and other conditions of their engagements as independent contractors. Following the establishment of that association, the rates of payment for broadcasters were arrived at through negotiation and agreement with the association and approval by the Public Service Board. From 1984 until 1993 there were extensive negotiations for the restructuring of SBS to replace the fee for service contractors with appropriate employees, including an appropriate determination and appropriate award to apply to the employees who would be employed when the restructure came into effect.
RETAINER OF THE APPLICANT
On 25 April 1988 a memorandum was sent to the then co-ordinator of the Finnish Language Program to make broadcast announcements in April and May. The memorandum said that the Finnish program was in urgent need of contributors. The announcement was to the effect that SBS was inviting expressions of interest for contributors and broadcasters on the Finnish Language Program Radio 2EA. The duties were said to include planning, presentation and production of a variety of programs. The announcement said that applicants must be proficient in the Finnish language and that the successful applicants would be engaged as contributors on a contractual basis. Expressions of interest were invited by 15 May 1988.
On 10 May 1988 the applicant wrote to the program manager of 2EA in reply to an advertisement published on 7 May. Part of the letter stated: “…because of my work history I am very interested in the position with your radio station as a contributor.” Some brief details were furnished. On 24 May 1988 the acting program manager for Radio 2EA wrote to the applicant thanking her for her interest in the program and confirming an interview for 14 June 1988. It appears that the applicant was found suitable: an endorsement on her letter of 10 May 1988 is to that effect. A note of 22 June 1988 made by the Acting Program Manager confirms that the applicant had been suitable and was engaged as a broadcaster to prepare and present programs on the Finnish program with Tony Lehtonen.
The job that the applicant carried out at SBS until 1992 was designated as both broadcaster and journalist. Those two designations accurately covered her role. She both presented programs and undertook all aspects of their preparation, specifically planning, research and script preparation and announcements. Mr Lehtonen recorded that the applicant worked with him as a broadcaster and journalist and prepared her own ten to twenty minute recorded segment for every program. She shared the journalistic work with Mr Lehtonen. She did many interviews with different people and did her own research.
The Finnish program was broadcast every Saturday from 8.15 pm to 9.15 pm. The applicant would commence work at 2 pm and leave after 9.30 pm. That is the work that she carried out during the whole of the period of her contractual arrangement with SBS.
RESTRUCTURING OF SBS
After some five years of some uncertainty, SBS received the go-ahead in 1983 to proceed with the clarification of the status of broadcasters and co-ordinators with a view to offering them employment. The agreement followed personal representations by the then chairman of SBS, Sir Nicholas Shehadie, to the then Prime Minister and also the then current Minister. Negotiations took place over a number of years between SBS, Actors and Announcers Equity, the Australian Journalists Association and the Public Service Board. In late 1985, elements of agreement appeared to emerge with the SBS and unions concentrating their efforts to resolve the issue.
A complex series of agreements were entered into by all parties concerned. The agreements included the following:
· job specifications and a Public Service Board determination to enable the creation of broadcast officer positions with an appropriate salary structure to reflect the responsibilities of those positions;
· appropriate entry assessment requirements, both for broadcast officers and group journalists;
· the acceptance of the concept of bilingual journalists to enable the delegation of news and current affairs matters;
· merit advancement;
· a compensation package for those broadcasters and co-ordinators who either may not be eligible or may not be offered employment in the new structure; and
· a selection process and selection committee structures.
A memorandum of SBS of April 1987 records the following as a brief summary of the selection process. It was said to illustrate the complexity and fairness of the process:
“Language groups comprise a team of broadcasters and group journalists. All the positions (both full time and part time) are advertised simultaneously. Two divergent selection processes with two separate selection committees then occur.
The selection committee for broadcast officers comprise:
·a representative of SBS management;
·a community consultant;
·an Actors Equity workplace representative.
The selection committee for journalists comprise:
·two senior SBS journalists (A grade or higher);
·a management representative;
·the same community consultant who sits on the selection committee for broadcasters for the same group.
All written applications are initially considered by the relevant selection committees, against the selection criteria for the relevant positions and a short list developed.
Short listed applicants for both broadcast and journalist positions are then invited to undertake an entry assessment. This comprises:
(1)translation from English into the relevant language of a 100 word community service announcement;
(2)translation of news stories of 200 words from English into the relevant language;
(3)the writing of a radio script for transmission on radio in the relevant language;
(4)applicants sitting for the language assessment are then invited to record a 10 minute radio program segment comprising the aforesaid script plus adlibbing and the introduction of an interviewee.
These assessments (both the written and tape recorded) are then sent to two separate assessors in strict confidence.
…
The assessments are not of literary translations but on the basis of communication skills, that is the applicant's ability to comprehend an English text and communicate that meaning accurately in the relevant language.
Applicants for journalist positions are asked to undertake a further assessment of their journalistic skills. A second written assessment is conducted in English.
At some stage prior to mid 1992, a report to the Board of SBS on the background of proposed strategy relating to current restructuring was made. Part of the report states:
1. Background:
The restructuring of SBS Radio was suspended in late 1989 pending the re-allocation of air time to reflect the composition of the Australian community in the 90s. The long and sometimes painful process of rescheduling was completed when the two new schedules approved by the Board were implemented on 10 February 1992.
As agreed with the relevant unions at the time of suspension of the restructuring, new rounds of recruitment were resumed in April to remove the inequity of the different stages between broadcasters and journalists who are public servants and those who are contractors.
During the previous exercises, only 15 language groups were restructured in Sydney and 23 in Melbourne. (Most of them were large and established communities.) The current restructuring will involve 48 language groups at 2EA and 37 at 3EA. (Most of them are small and a number newly established.)
2. The process:
Under the structural efficiency principle, negotiations which took place some two years ago, the Australian Journalists Association (AJA) agreed to a simplified recruitment process consisting only of three members (SBS radio station management, a skilled professional and a Commonwealth officer from a relevant department/agency). A community consultant or representative and an AJA representative are no longer required under this agreement.During further discussions in March this year with the AJA, a combined position of broadcaster/journalist was also agreed in principle to overcome the demarcation difficulty in editorial terms between a broadcaster and a journalist. Duty statements and selection criteria were also worked out with the AJA for the positions of broadcasters, journalists and the combined position of broadcaster/journalist.
… Also, during those discussions, the AJA was advised of steps to be followed during the interviewing process which included a journalistic assessment as part of the interview for those who applied for the combined position of broadcaster/journalist.
A set of questions was worked out between the two interviewing committees to ensure consistency of selection on the basis of the selection criteria.
The last step of the process for these applicants found suitable by the selection committee is a language test conducted by the Institute of Languages of the University of New South Wales, as agreed with the AJA.”
Annexed to that report was a document which set out the make-up of selection committees as follows:
“The 3 person committee in each state consists of:
(1)SBS radio management representative, 2EA manager or 3EA manager as chairperson.
(2)Skilled person from sister station or SBS TV (AJA member).
(3)Commonwealth Government officer relevant department or agency.”
It is necessary to consider the application that was made by the applicant to SBS against the background of those restructuring proposals. In 1988 the applicant apparently submitted an application to SBS for the position of journalist/broadcaster. In connection with that application, she submitted to SBS a reference from Paula Sutinen and Risto Sutinen dated 4 November 1988. That reference was relevantly in the following terms:
“As it has come to our knowledge that Ms Helja Raisanen is applying for a job as the Finnish language radio programs co-ordinator at the SBS Radio in Sydney, we would like to put in a word in her favour.
We were living in Sydney from January to November 1984 and again from January to October 1987 and had the chance to listen to Finnish language radio programmes there. However, we did not like them very much because the Finnish language used in them was not good at all, nor were the contents of programmes very interesting, either.
We think that it is essential that Finnish language programmes are conducted in good Finnish language. Elderly migrants love to hear their mother tongue, and for the younger generation, these programs are language lessons at the same time. They can also be educational and informative if they are well prepared.
While in Sydney, we had opportunities to hear Ms Helja Raisanen as a compere at social functions. Her Finnish language was perfect and her interpretations between the two languages - English and Finnish - accurate and quick.
We are convinced that Ms Raisanen would fill the position of the co-ordinator/commentator in Finnish language radio programs at the SBS Radio in Sydney to the full satisfaction of listeners as well as to the satisfaction of the SBS Radio administration.”
By letter of 5 December 1988, Ms Pamela Blackman of the Restructuring Section of SBS acknowledged receipt of the applicant's application for the position of journalist/broadcaster. The letter set out “a number of things” which Ms Blackman said applicants “should be aware of”. The letter relevantly said as follows:
“Firstly, you will be asked to attend an entry assessment. This consists of a 2½ hour written assessment and a half hour studio audition. You will also be required to attend a three hour journalist assessment. More specific details about the assessments are contained in the enclosed information booklet.
The written assessment will be held on Wednesday, 14 December…
…
The journalist assessment will be held at 1.30 pm on the same day.
…
Your audition will be held on Wednesday, 21 December. You will be told the exact time of your audition when you attend the written assessment.
…
Depending on the outcome of these assessments, you may be required to attend an interview.”
Attached to that letter were selection criteria for Broadcaster Class 1, Broadcaster Class 2 and Journalist Grade B. Also attached was further information relating to the entry assessment procedure and the journalist assessment.
The applicant sat for an assessment test in regard to the Finnish language program on 14 December 1988. She said that she attended the assessment and sat for both the written and journalist assessments on that day. While no document was in evidence before me, the applicant said that she recalled that she subsequently received a letter informing her that she had passed the test but that the restructuring had been postponed so that appointment to the position referred to in her application would not be occurring at that time. I have no reason to doubt the truth of that statement.
As I have already said, the restructuring program was reactivated during 1992. On 12 June 1992, an internal memorandum of SBS records that instructions were given for announcements to be made in relation to vacancies in a number of language programs, including Finnish. The instructions included the following:
“Both the English version … and the version in your language (script in English for translation attached) must go to air in every program on and after Saturday, 13 June until and including Monday, 29 June.”
It appears that at the same time advertisements were published in newspapers in Sydney and Melbourne inviting applications for broadcasters and journalists in a number of languages including Finnish. The advertisements required applications to be sent to the Radio Restructuring Officer of SBS by Monday, 29 June 1992. The applicant saw the advertisement and responded to it.
When she did so she was provided with some further information including a document entitled “Positions Available”. That document relevantly provided as follows:
“SBS Radio 2EA
Finnish Language Program
One Program Per Week
There are a number of possible staffing structures for staff in the Finnish Language Program. SBS prefers to recruit staff who are able to undertake both broadcaster and journalist duties as a broadcaster/journalist. However, if there are no suitable candidates, then SBS will recruit staff who can work as either a broadcaster or journalist
Preferred staffing structure
Broadcaster/Journalist Level 2 (13 hours per week)Alternate staffing structure
Broadcaster Level 2 (9 hours per week)
Journalist Level 1, (4 hours per week)”At some stage prior to her interview in July 1992, the applicant was also furnished with a further two documents, one of which was headed “Selection Criteria” and the other headed “Duty Statement”. Both had subheadings “Broadcaster/Journalist Level 2, Relevant Language Program”. The first document, “Selection Criteria”, sets out eight criteria as follows:
“1. Proficiency in the relevant language including a clear delivery in that language**
2.Demonstrated ability to undertake the more complex broadcasting tasks involved in planning, preparing and presenting radio programs
3.Demonstrated ability to write, compile and present news, sport and current affairs from a variety of sources, including the production of current affairs from a variety of sources, including the production of current affairs and/or documentaries
4.Demonstrated management skills, and in the case of head of a language group, budgeting skills
5.Demonstrated communication skills in English
6.Understanding of, willingness to abide by, and ability to monitor and ensure compliance with, the standards used by SBS, in particular the SBS Guidelines for Radio
7.Knowledge of relevant audience and its ethnic, religious, political, social, communal and historical background together with knowledge of homeland and Australian issues
8.Knowledge of government departments and other agencies in the Australian community providing social and cultural services
**Suitable interviewees are required to undergo a language assessment to demonstrate their proficiency in the relevant language.”
Persons who indicated an interest in the positions in June 1992 were furnished with an information kit by SBS. The information kit contained the following cover note:
“Thank you for your inquiry about the recently advertised positions within SBS Radio. The Information Kit is designed to provide applicants with a broad understanding of the role and function of the SBS Radio.”
The information kit contained a number of documents as follows:
· a copy of the newspaper advertisement;
· SBS Radio 2EA schedule, showing that the Finnish program was broadcast at 10.45pm on Saturdays;
· charter of the SBS describing the role of SBS as set out in s 6 of the Special Broadcasting Service Act 1991;
· SBS mission statement;
· SBS guidelines for radio;
· SBS policy statement on combating racism;
· application form;
· documents headed “Important matters” and “Checklist”.
On 29 June 1992 the applicant submitted a form in accordance with the information kit. The form was dated 27 June 1992 and it comprised applications for two positions being Broadcaster/Journalist and Journalist 1. Subsequently, the applicant furnished to SBS two references, one from C M Beaton, Principal Policy Adviser in the Policy Department Branch of the Department of Employment, Industrial Relations and Training, Tasmania dated 24 June 1992 and the other from Helena King of Tour Hosts Pty Limited dated 1 July 1992.
By letter of 30 June 1992, Mary Ghanem, the Restructuring Officer of SBS, confirmed that the applicant had been invited to attend an interview for the position of Broadcaster/Journalist 2 and a Journalist 1 in the Finnish Language Program on 7 July 1992. The letter requested that the applicant bring, amongst other things, two separate written referee’s reports relating directly to the selection criteria and, if the applicant had previously passed the language test, evidence of the result.
The applicant attended the interview on 7 July 1992. A number of applicants also attended interviews on that day and on the following day, in relation to the Finnish language program. Included amongst those other applicants was Mr Mattas. The applicants were interviewed by a panel comprising Sawsan Madina, as chairman, the manager of SBS Radio 2EA, Raymond Moti, news editor of 3EA and AJA member, and Robert Brandsceid, independent committee member of the DILGEA.
The committee prepared assessment reports in respect of each of the applicants. Part of an interview report in evidence contains the assessments in relation to Mr Mattas and the applicant. It also contains copies of the applications by each of them, including their references. It also contains their “news report”, based on certain clips that they were shown in the course of the interview.
By letter of 31 August 1992, the restructuring officer of SBS wrote to the applicant saying that the recommendation from the interview committee had been received. The letter went on to say, relevantly:
“I wish to advise you that your application for the above positions unfortunately has not been successful on the basis that you did not meet the selection criteria.
As a result, you are welcome to continue your services until and including 13 September 1992. After that date your services will no longer be required.
As you have been providing a service to the Finnish Language Program for more than 12 months, you are eligible for compensation. Details of your compensation package is (sic) outlined on a separate page attached to this letter.”
On the same day Wolfgang Ziegler, the Acting Station Manager of Radio SBS, wrote to the applicant saying that he had been informed by the restructuring co-ordinator that her application for the positions in the Finnish Language Program had not been successful. The letter went on to say that the writer understood that the applicant may be eligible for some compensation.
By letter of 24 September 1992 the personnel manager wrote to the applicant regarding her entitlement to compensation, saying that an amount of $1,004.55 had been deposited into her account, which represented payment of her entitlement. The letter set out the calculation of that sum.
By letter of 8 October 1992 the restructuring officer sent to the applicant a copy of her assessment report. It is that report and the corresponding report in relation to Mr Mattas that give rise to the complaints by the applicant concerning her treatment by SBS. I shall come to the detail of those reports in due course.
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PROCEEDING
By notification on 8 September 1992, the Media, Entertainment and Arts Alliance (“MEAA”) alleged the existence of an industrial dispute between MEAA and SBS. The notification was to the Australian Industrial Relations Commission (“AIRC”). The matter alleged to be the subject of dispute related to the negotiations on redundancies between MEAA and SBS. That matter originally came before Deputy President Harrison. On that occasion SBS expressed the view that the dispute was about the amount of redundancy benefit that particular persons would receive. MEAA, on the other hand, claimed they were not only concerned about the level of redundancy payment, they also sought to halt the selection process for the new restructured position of Broadcaster/Journalist. At the conclusion of the hearing before Deputy President Harrison, it was recommended that all industrial bans be lifted so that the Commission could assist the parties by chairing conferences.
The matter then came before Commissioner Smith of the AIRC on 15 September 1992, where conferences failed to produce a settlement on the dispute. On 1 October 1992, following a further conference, a recommendation was made. The next morning the parties announced that an agreement had been reached. That agreement was relevantly as follows:
“1. Compensation package for Contractors
The MEAA have agreed to take back to its members an offer from the SBS for the compensation package for contractors terminated as part of the restructuring process to be increased from 26 weeks to 30 weeks for people over 45 years of age and from 13 weeks to 17 weeks for people under 45 years of age.
SBS makes this additional and final offer in the interests of equitable treatment of people, notwithstanding their status as contractors of employees.
SBS agrees to address individual anomalies relevant to the redundancy package raised by the MEAA.2. Review of SBS Radio selection process at 2EA and 3EA
SBS Management acknowledge the Union’s concerns that there are perceptions within SBS Radio 2EA that the current merit based selection process may not be fair. In view of this, SBS Management has agreed to a review of the selection process at both stations by an independent person.…
4. Future negotiations
The parties will commence discussions as soon as possible on terms and conditions under the SBS Act. The parties agree to review redundancy and redeployment issues including the question of quantum as part of these discussions. SBS respects the right of the MEAA to raise the issue of paying any improved quantum to people affected by this agreement.”The matter of the unfairness of the process was then the subject of further proceeding before the AIRC. In the course of that proceeding the applicant made submissions orally to the Commission. Her submissions relevantly included the following:
“…the SBS interview committee during the current restructuring made the decision to terminate my employment by saying that I did not meet the selection criteria. I will briefly detail my background. When I started working at 2EA in 1988 I had undertaken a freelance journalism course as well as broadcasting production, script writing, and film TV and radio works of studies.
I also had four years’ experience in print media, journalism and advertising in Finland. I was no offered training or proper introduction to my radio work at 2EA. However, I continued learning from my colleagues and I enrolled to the university as a full time student to further my education and abilities on this field.
Now, I have two weeks to go before I obtain an degree in BA of Communication, majoring for journalism and media production. Furthermore, I have 12 years’ experience in freelance writing. My last article was published 28 September 1992 …
However, SBS hired less qualified person than myself in media work. After listening to his programmes my comments are he has a speech defect. The problem, of course, in words with R and S. I do not wish to be unsympathetic to his misfortune, but it is detrimental to the programme quality that he does not provide clear delivery when broadcasting.
This is contradictory to selection criteria number one, and I urge the Honourable Commissioner to check SBS’s language test. Being a specialist in radio and press news, I feel that his news presentations are unprofessional and sometimes misleading. Firstly, because of his inability to translate from English to Finnish produces non-coherent sentences. Such as his news report after announcing 2EA his reasons for recent strike, by claiming the editors - he did not say broadcasters and journalists, he said editors, went on strike because they were unhappy with redundancy money claimed for damages and military enlisting.”
On 26 March 1993 Commissioner Smith published his decision on the matter then outstanding. His conclusion was that he was unable to conclude that there was any divergence from proper procedure in recruiting and selecting persons for the positions advertised. The existence of markedly different outcomes in Melbourne and Sydney gave him reason to pause and reflect on the conduct of persons associated with SBS. Commissioner Smith recorded that he appreciated the strong views held by those who condemned the approach taken by SBS but on the material before him he was unable to reach any conclusion that would support he view that impropriety was exhibited by any person associated with the selection of persons for positions at SBS.
REPORTS OF INTERVIEWS CONDUCTED ON 7 & 8 JULY 1992
The reports of the interviews of the applicant and Mr Mattas take the form of dealing with the assessment of each applicant in relation to the criteria set out in the document to which I have already referred – see paragraph 29 above. It is significant that the assessment in relation to the applicant indicated that she did not meet several of the criteria. The conclusion in relation to each criterion on relation to the applicant is as follows:
· Criterion 1: The applicant advised the committee that she had previously sat for the SBS Radio language assessment but had not received notification of the result. The applicant did not meet the other criteria and was not required to undergo the language assessment.
· Criterion 2: The applicant does not meet this criterion.
· Criterion 3: The applicant does not meet this criterion for a Broadcaster/Journalist Level 2 and marginally meets this criterion as a Journalist Level 1.
· Criterion 4: The applicant did not provide references which could attest to her management skills. Her CV did not show that she has any experience in a management capacity. It is not possible to assess the applicant against this criterion.
· Criterion 5: The applicant meets this criterion to a high degree.
· Criterion 6: The applicant marginally meets this criterion.
· Criterion 7: The applicant meets this criterion.
· Criterion 8: The applicant marginally meets this criterion.
· Criterion 9: It is not possible to assess the applicant against this criterion.
The conclusion under the heading, “General Comments”, is as follows:
“The applicant is currently undertaking a degree in communications and has worked for SBS Radio for 4 years. Her written journalist assessment and responses at interview indicate a basic journalistic ability, however, she could not demonstrate the journalistic skills required at the levels applied for. She was also unable to demonstrate the programming ability required of a professional broadcaster.
THE APPLICANT WAS NOT FOUND SUITABLE FOR BROADCASTING JOURNALIST LEVEL 2 AND JOURNALIST LEVEL 1.”In relation to Mr Mattas, the report relevantly contains the following assessments in relation to each criteria.
· Criterion 1: The applicant sat for the independent language assessment and passed. The applicant meets this criterion.
· Criterion 2: The applicant meets this criterion Broadcaster Level 2 and Broadcaster/Journalist Level 2.
· Criterion 3: The applicant marginally meets this criterion for a Broadcast/Journalist Level 2, and meets for Journalist Level 1.
· Criterion 4: The applicant’s referees attest to his communication, interpersonal and teamwork skills. The applicant meets this criterion.
· Criterion 5: The applicant meets this criterion to a high degree.
· Criterion 6: The applicant meets this criterion.
· Criterion 7: The applicant meets this criterion.
· Criterion 8: The applicant meets this criterion.
The conclusion under the heading, “General Comments”, is as follows:
“The applicant has had extensive experience at the Finnish Broadcasting Corporation as well as the ABC. At the interview he demonstrated that he possessed the programming skills required of a Broadcaster Level 2 and Broadcaster/Journalist Level 2. His journalistic skills marginally meet the standard required of Broadcaster/Journalist Level 2 and the committee believes that the applicant has the ability to perform the duties of Broadcaster/Journalist Level 2.
THE APPLICANT IS MARGINALLY SUITABLE FOR THE POSITION OF BROADCASTER/JOURNALIST LEVEL 2 AND SUITABLE FOR BROADCASTER LEVEL 2 AND JOURNALIST LEVEL 1.”There was evidence before me that Mr Mattas passed the independent language assessment. That evidence consists of a letter from the University of New South Wales to SBS of 19 October 1992, writing to notify SBS of the results achieved in the SBS Language Assessment Test up to that date. The results showed that Mr Mattas passed the test in relation to Finnish. Nevertheless, the applicant contended in the proceeding in this Court that Mr Mattas’ skills are less than adequate. In the view which I have reached, it is unnecessary to make any judgment about that question. However, it is appropriate that I refer to the evidence upon which that contention was based.
Mr Risto Soder is the Editor of the Suomi Newspaper, which is the leading Finnish newspaper in Australia. On 19 February 1998 he wrote an English language editorial in that newspaper in which he relevantly said as follows:
“Our multicultural Australia presents tens of different ethnic groups an opportunity to have radio programs in their own language on SBS. Furthermore, in many cities the Ethnic communities have started their own radio stations and in many of them the Finns are participating as well.
This voluntary work is respected and if not all of these programs have been masterpieces, it is understandable. However, normally the quality has been good and there has not been much to criticise.
With SBS it is a different story. SBS will employ the staff after a complicated selection process and will also pay the salary. There has been enough applicants for the Finnish programs both in Sydney and Melbourne. Thus you can assume that after this procedure there would have been competent broadcasters in both cities.
…
The Finnish programs are now made only in Sydney where the broadcaster has for some years now been Mr Karl Mattas. His appointment to this job was a small surprise because he had no earlier experience and his Finnish language was not very fluent. However, nobody should be condemned beforehand and everyone should be given an opportunity to improve his skills.
Unfortunately Mr Mattas has not improved at all after the retirement of Mr Pentila (who provided the service in Melbourne), listening to the SBS Finnish programs has been a real pain. Either Mr Mattas do not know Finnish well enough or then he cannot read or both of them. In each case his talk is mostly incomprehensible gibberish, where every second sentence must be corrected or the whole story started again.
Naturally, the executives in SBS do not know any Finnish and probably do not even realise this problem. But surely the language skills of all applicants must have been tested beforehand. It would be interesting to know who has tested Mr Mattas and with what kind of results. And naturally how his competence as a broadcaster has been evaluated. For instance, his choice of news presented in the programs gives cause to assume his is not fully competent.”
Mr Soder said in an affidavit that the views that he expressed in that editorial were his opinions at that time and that he was expressing his views as they existed at the time of the editorial. He said that he made his comments after listening to Mr Mattas’ program since Mr Mattas took over in 1992. Mr Soder also said that there are two official languages in Finland: Finnish and Swedish. He said that Mr Mattas is from a Swedish speaking background, which represents about 5 per cent of the population. Finnish is taught at school to all of the population. However, in terms of pronunciation, grammar and vocabulary, it was apparent to Mr Soder, at the time of writing the editorial, that Mr Mattas’ mother tongue was not Finnish.
No evidence was given of Mr Soder's opinion at any other time, although an application was made to adjourn the hearing to enable further evidence to be obtained from Mr Soder. I declined that application in the absence of any satisfactory evidence to explain why further relevant evidence was not obtained previously. In any event, as I have already said, I do not regard this evidence as having any bearing on the outcome of the proceeding.
The applicant also gave evidence by affidavit in support of her contention that Mr Mattas’ Finnish was inadequate. The applicant is a native Finnish speaker, having been born in Suomussalmi. She lived in her birthplace until she was approximately fifteen. She then moved to Helsinki, where she lived until she was twenty four. I accept that the applicant is a fluent Finnish speaker.
She annexed to her affidavit a number of comments made by her in respect of broadcasts by Mr Mattas in the Finnish language program between 13 August 2000 and 4 March 2001. The comments consist of a detailed schedule of mistakes in Mr Mattas’ Finnish. However, no context is given for the alleged mistakes, so that it is not possible to make any judgment as to the seriousness of the errors, or the extent to which a listener would not be able to understand what was being said in Finnish. Some of the comments appear to be minor. They concern pronunciation and mistakes in inflection. They do not indicate to me that the broadcasts by Mr Mattas would not be comprehensible to a Finnish speaker. In any event, as I have said, on the view that I take, that evidence is not material.
The thrust of the applicant's complaint is that she was not given the opportunity to show her expertise in Finnish in circumstances where Mr Mattas was appointed notwithstanding his unsatisfactory skill in the Finnish language. I was invited to form a conclusion that the assessments by the interviewing committee as to the fluency of Mr Mattas in Finnish were wrong. That seems to me to be a complete misconception of the task of the Court in an application such as the one before me.
CONSTRUCTION OF S 127A
The question is whether a contract as defined in s 127A(1) of the Act is unfair. The question is not whether a party to the contract has performed his or her obligations under the contract. The first question that must be determined is whether or not there can properly be said to be a collateral arrangement relating to the contract for services between the applicant and SBS. It is common ground that there was in force up until 31 August 1992 a contract for services within the meaning of s 127(1)(a) of the Act. The question is whether there was a collateral arrangement relating to such a contract.
ARRANGEMENT RELATING TO THE CONTRACT
An “arrangement” is apt to describe something less than a binding contract or agreement. However, in order for there to be an arrangement, there must be a meeting of the minds of those said to be parties to the arrangement. There must be a consensus as to what is to be done, not merely a unilateral hope as to what might happen or might be done. An arrangement will normally involve a communication between parties giving rise to expectations in each other that the other will act in a particular way.
There is, of course, no necessity for an element of commitment between the parties to an arrangement. If there were, there may be a contract or an agreement enforceable at law. If it could be said that the arrangements concerning the interview of July 1992 and the basis upon which a position would be offered to the applicant relate to the contract for services, I am satisfied that they are capable of constituting an arrangement. That is to say, the applicant applied for the position. I infer that the expectation of the applicant and SBS was that the decision in relation to her application would be made in accordance with the regime that had been established pursuant to the negotiations concerning restructure, which I have already described.
There was an expectation and a consensus that the positions advertised would be filled in accordance with the selection criteria that had been published as part of the information kit. There is no contention that those arrangements were in the slightest bit unfair. Indeed, they appear to me to be eminently fair.
However, I do not consider that the arrangements relating to interview and appointment relate to the contract for services between the applicant and SBS.
It may be that the applicant was granted an interview because of her experience with SBS. It may be that she was granted an interview because of the contractual relationship which then existed. However, that in my view is not sufficient to conclude that the arrangements for the interview relate to the contract for services. They have no connection with the contract for services. The contract for services could have continued irrespective of whether the interview was granted. The interview and the arrangements relating to the filling of positions was not in any way collateral to the contract for services. That would be sufficient to dispose of this application.
UNFAIRNESS
However, as I have said, this application is not based on the contention that those arrangements were unfair, but is based on a contention that that selection committee made a mistake in preferring Mr Mattas over the applicant. I have already said that it is significant that the committee concluded that the applicant did not meet certain of the criteria. For that reason, she was not required to undergo the language assessment. One of the requirements of the interview was that she bring evidence of her having passed the language test. She apparently failed to comply with that requirement. The failure to ask her to undergo language assessment is completely irrelevant to any suggestion of unfairness. It can be inferred that the reason why the applicant was not offered the position is simply because she did not meet certain of the criteria for the position. It was therefore unnecessary for her to undergo a test to see if she satisfied one of the other criteria. On the other hand, Mr Mattas, it seems, satisfied the independent language assessment, the requirement imposed pursuant to the restructuring arrangements that I have described. Whether that test was adequate is something about which this Court can express no view at all.
The other complaint about the assessment of Mr Mattas is that Criterion 4 required demonstrated management skills, including supervisory, liaison teamwork, administrative and budgeting skills. The comment in the assessment is that Mr Mattas’ referees attested to his communication, interpersonal and teamwork skills. There is no indication that the referees attested to the other skills required by Criterion 4. However, the committee concluded that the applicant met that criterion. It reached that conclusion after interviewing Mr Mattas, and considering his curriculum vitae as set out in his application form. It is certainly not apparent that there was no material before the committee upon which it could base its conclusion that Mr Mattas satisfied Criterion 4.
This criticism is misconceived. The applicant has eschewed any complaint about the process as it was intended to be followed. Yet she contends that there was unfairness in the outcome in the particulars that I have indicated. As I have already indicated, that is a misconception.
Section 127A is concerned only with unfairness and harshness at the time when a contract is made. It may be that the terms of a contract vary during the course of its performance. Thus, a contract which was fair at the time when it was entered into may, by reason of some variation of it, become unfair. The Court may then be called upon to form an opinion in relation to the contract as varied. Nevertheless, it is the terms of the contract which must be considered. Considerations of unfairness must be made of the contract in its form at the time it was made or varied.
I do not consider that there is any warrant, in the clear words of s 127A, for considering the fairness of conduct by a party to a contract in not observing the terms of the contract. That is, in effect, the complaint that is made. Even if that were open, I do not consider that such a complaint is made out. I do not consider there is any material before me to support a conclusion that the committee decided the appointments in question, otherwise then in accordance with the regime that had been laid down.
There is nothing unfair in the outcome on the basis of the material before me. I make no assessment of the competence of Mr Mattas for the reasons that I have indicated. That is sufficient to dispose of the application. However, a number of other matters were raised by SBS to which I shall refer briefly.
RETROSPECTIVITY
Sections 127A and 127B were first inserted into the Act by s 7 of the Industrial Relations Legislation Amendment Act 1992 (“the 1992 Amendment”). In its original form, s 127B provided that application could be made to the AIRC to review a contract. Section 7 of the 1992 Amendment commenced on 23 July 1992, pursuant to proclamation dated 21 July 1992. Sections 127A and 127B were amended by s 71 and s 72 of the Industrial Relations Reform Act 1993 (“the 1994 Amendment”). Sections 71 and 72 commenced on 30 March 1994 pursuant to proclamation dated 25 March 1994. By s 71 and s 72, the Industrial Relations Court of Australia was substituted for the AIRC, as the tribunal to which application could be made under s 127A and which could make orders pursuant to s 127B of the Act. Thus, the jurisdiction under s 127B was conferred on the Industrial Relations Court of Australia. The jurisdiction of that Court was subsequently conferred on the Federal Court of Australia. Nothing appears to turn on that further complication.
Neither s 127A nor s 127B alters the rights or liabilities of any party to a contract as defined. Rather, the provisions authorise the Court to make orders that have the effect of varying the rights and liabilities of parties to such a contract. Thus, the Court may, by its orders, either set aside the whole or a part of a contract or vary the contract. No court had jurisdiction to do so prior to 30 March 1994, although the AIRC had power to make such orders from 23 July 1992.
A question that arises is whether the jurisdiction of this Court extends to setting aside, either in whole or in part, or varying, a contract that was fully executed and performed prior to the conferral of jurisdiction on the Court or its predecessor. In my opinion, on any view, any collateral arrangement alleged by the applicant had been made prior to that jurisdiction being conferred.
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities that the law had defined by reference to the past events; see Maxwell v Murphy (1957) 96 CLR 261 at 267. Neither the 1992 Amendment or the 1994 Amendment, of itself, affected any right or liability under any contract as defined. Their effect, as I have said, was simply to confer a jurisdiction and power, first on the AIRC and then on the Industrial Relations Court, to affect such rights.
As I have said, I do not need to reach a final conclusion in relation to this matter. However, my tentative view would be that the 1994 Amendment should be construed as conferring jurisdiction and power on the Federal Court to make orders only with respect to contracts as defined that came into existence on or after 30 March 1994. To construe the provision otherwise would involve the possibility that the Court could make orders that would affect rights that were vested at that date.
DELAY
SBS also relied on a number of matters relating to the delay in the commencement of this proceeding. The Act does not contain any time limit for the commencement of a proceeding pursuant to s 127A. SBS contended that s 14 of the Limitation Act1969 (NSW) applies to the present proceeding. Section 14(1) provides relevantly as follows:
“An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom he claims:
(a) a cause of action founded on contract (including quasi contract) not being a cause of action founded on deed,
….”
I do not consider that the cause of action under s 127A is founded on a contract. Rather, it is to seek orders that have the effect of varying a contract. If the Court made an order varying a contract, it would be a matter for an applicant to seek to enforce the contract, as varied, in a court of competent jurisdiction.
It may be that a contract as varied would give rise to a cause of action. The question would then arise as to when that cause of action arose. It may be that, on proper analysis, the cause of action on a contract for services as varied by the Court arises at the time when the variation is made.
It would be a curious result where a contract were varied such that there was a cause of action for the recovery of moneys under the variation that might be payable if that cause of action were held to have arisen prior to the variation. It may be that in an appropriate case, the time at which any money payable under the contract as varied is payable should be specified by the Court to avoid any difficulty with limitation in such circumstances.
In any event, I do not consider that s 14 would have been a bar to this claim. Alternatively, it is alleged that the limitation provided by s 14 should be applied by analogy to a claim of this nature. However, the cause of action in issue in this proceeding is a statutory one. A claimant who can bring circumstances within the requirement of the section is entitled to have the Court exercise its discretion in her or his favour. Prima facie, any limitation defence that is available to such a statutory cause of action should be found in the provisions of the legislation that has created it or within the provisions of some other legislation of more general import such as the Statute of Limitations. There is nothing in the Act that allows any defence to be raised on the basis of delay in initiation of proceedings, which might otherwise circumscribe the jurisdiction of the Court.
It seems to me that the matter should be approached on the basis that there is a statutory entitlement to commence proceedings, which is not affected by any limitation legislation. The question of delay is relevant only to the form of relief that might be awarded where, in appropriate circumstances, undue delay may render it inappropriate that a particular form of relief be available.
On that basis, it may that the doctrine of laches, also relied upon by SBS, does not form part of the substantive law to be considered in dealing with claims brought under the Act. The doctrine of laches may not be applicable to prohibit a claim for relief being initiated or prosecuted, at least on an interlocutory basis, although it may be appropriate that such relief be available in the context of any relief granted, the form of any final orders. However, again, I do not need to decide this question.
It may be that delay of itself is a reason why the discretion might be exercised against an applicant. That, however, is a different matter from saying that the application is barred. Delay of itself might be a reason that could be taken into account in determining whether or not the arrangement complained about was unfair. It should, perhaps, be said that, in the present case, the applicant has not stood by for eight years, albeit that eight years elapsed from the events in question before the commencement of this proceeding. The applicant may well have had poor advice in relation to her complaint. Again, it is not appropriate that I form any judgment on that matter. However, since it has been litigated, I will indicate briefly the circumstances relied on by the applicant as an answer to SBS’s contentions relating to delay.
As I have already said, the applicant appeared in the proceeding before Commissioner Smith in the AIRC. Following Commissioner Smith’s decision, the applicant was advised that there was nothing she could do about that decision. She then spoke to a firm of solicitors and sent letters to various agencies seeking their assistance in obtaining a review of the way in which her application to SBS had been treated.
A number of letters between 16 October 1992 and 28 January 1997 were written by her in that regard. She made application under the Freedom of Information Act 1982 (Cth) for access to materials relating to the decision. As a consequence, she received the assessment relating to Mr Mattas in late 1994. She was subsequently advised to pursue an application relating to unfair dismissal under the New South Wales Industrial Relations Act before the New South Wales Industrial Relations Commission. She subsequently withdrew an appeal in relation to that application. She subsequently made an application before the Chief Industrial Magistrate. That application was unsuccessful. She lodged an appeal to this Court against that decision but, subsequently, on legal advice, withdrew the appeal. It was not until 2000 that she commenced this proceeding.
The applicant has certainly been energetic in pursuit of her complaint. As I have said, I do not have the material before me to form any view that any complaint that she makes was well founded. What is clear to me is that the application to this Court is misconceived and in my view should not have been brought. I should add that the statement of claim also contains an assertion that the original contract for services was unfair in its operation and in its result. The particulars of that claim were that the applicant was not paid the “language allowance” pursuant to certain awards. No submissions were addressed in support of that contention and, when counsel for the applicant was reminded, he indicated that the claim was abandoned. That claim was made in the face of a determination that the applicant was not an employee of SBS. It is a claim that should never have been made.
It follows from what I have already said that the application should be dismissed. A question, however, arises as to whether it is appropriate to make an order for costs in relation to the matter. Section 347 of the Act provides as follows:
“A party to a proceeding in a matter arising under the Act is not to be ordered to pay costs incurred by any other party unless the first mentioned party instituted the proceeding vexatiously or without reasonable cause.”
The mere fact that an applicant fails to make out a case for the relief sought in a proceeding cannot render the proceeding something other than one in a matter arising under the Act. Careful scrutiny will be required to ascertain whether the claim made was vexatious or without reasonable cause at its inception. Clearly enough, the words of the Act must be allowed to speak for themselves. It is not helpful to substitute different words for those of s 347.
I do not consider that the claim made under s 127A was instituted vexatiously in any subjective sense. Indeed, it would, in my view, not be open to SBS to contend that the applicant acted vexatiously in a subjective sense. While she swore an affidavit setting out the circumstances of her alleged grievance, she was not cross-examined in relation to the commencement or institution of the proceeding. A proceeding might be seen to be instituted “vexatiously” in the circumstances that are the subject of numerous decisions in relation to that term when used in the rules of the Court relating to summary dismissal.
I consider the expression, “without reasonable cause”, is one apt to describe a proceeding that is capable of being disposed of summarily. I consider that this proceeding is of that nature. I consider that the claims that have been made have no substance in fact and law. I consider that the proceeding was therefore instituted without reasonable cause in the sense that I do not consider that the case advanced was arguable. In those circumstances, I consider that it is an appropriate case to order that the applicant pay the costs of SBS of the proceeding.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett . Associate:
Dated: 30 October 2001
Counsel for the Applicant: Mr J Berwick Solicitor for the Applicant: Turner Whelan Counsel for the Respondent: Mr A Ashburner Solicitor for the Respondent: Toomey Pegg Drevikovsky Date of Hearing: 24-26 September 2001 Date of Judgment: 26 September 2001
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