C2001/3964, Transcript of Proceedings [2001] AIRCTrans 2180 (31 August 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 8899
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

C2001/3964

APPEAL BY COAL & ALLIED OPERATIONS
PTY LIMITED AND OTHERS AGAINST A
DECISION DATED 9 JULY 2001 BY DEPUTY
PRESIDENT LEARY IN U1998/21083 RE
APPLICATION FOR RELIEF RE TERMINATION
OF EMPLOYMENT

MELBOURNE

4.06 PM, TUESDAY, 14 AUGUST 2001

Continued from 8.8.01 in Sydney

THIS HEARING WAS CONDUCTED BY VIDEO CONFERENCE IN MELBOURNE

PN464

MR F. PARRY: I appear for the appellant.

PN465

MR T. SLEVIN: I appear for the respondents. I appear for the respondents represented by Turner and Freeman as well, the MWU respondents.

PN466

THE VICE PRESIDENT: I have read the flurry of correspondence between the two parties. What I propose to do is to go through the order that was - the draught order that was prepared by Freehills and is attached to correspondence dated 10 August 2001; and I then want to start with you Mr Slevin and go through that order identifying the areas of concern that you have and I have some questions in relation to your position and some questions for Mr Parry. Do you have a copy of that in front of you, Mr Slevin?

PN467

MR SLEVIN: I do, your Honour.

PN468

THE VICE PRESIDENT: Okay. Well, and please correct me if I am wrong when I go through the concerns you have raised. The first is in relation to proposed order number 2 or paragraph 2 of the proposed stay. You say here that the relevant date should be the 13 August 2001, rather than 9 July 2001. Why do you say that?

PN469

MR SLEVIN: We say that, your Honour, because the way the words are drafted by the appellant would effectively deprive the employees of remuneration loss from 9 July to 13 August. I think we differ in relation to the wording in Leary's order relating to the date. There is the words "date of the order" appearing in her Honour's order 3. We say the date of the order is the date the order takes effect. It seems the appellants say that the date of the order is the date on the order.

PN470

THE VICE PRESIDENT: Would you mind speaking into the microphone, Mr Slevin, I got most of it but you're fading in and out a little bit.

PN471

MR SLEVIN: I will put the microphone a bit closer, is that better.

PN472

THE VICE PRESIDENT: No, that's fine, thank you. Okay is that all you wish to say about that point?:

PN473

MR SLEVIN: Yes, your Honour.

PN474

THE VICE PRESIDENT: Okay. Well I need not trouble you in relation to that point, Mr Parry. Mr Slevin, I am satisfied that it should be 9 July as in the draft. The reasons for that are essentially two reasons. The first is that paragraph 3 of her Honour's orders says, until the date of this order and that date is 9 July. In relation to what you say about the applicant's being disadvantaged in that they may not get lost remuneration between 9 July and 13 August, I think that is a separate question; and may depend ultimately on the disposition of the appeal proper. I am not seeking to make any judgment about the validity of that argument at all.

PN475

I am simply operating on the basis of the terms of the order that her Honour has made that are before the Commission at present. So, it is without prejudice to your argument that that construction would effectively deny the applicants the benefit of lost remuneration between 9 July and 13 August. Your next point, I think, is proposed order number 4. You say that the section in brackets.

PN476

Net of any tax that is required to be deducted including any tax payable on that interest income.

PN477

You say that would occur in the normal course anyway by operation of the Tax Act, is that the essence of your submission?

PN478

MR SLEVIN: Yes, that is right, your Honour.

PN479

THE VICE PRESIDENT: Mr Parry, if that's the understanding, is it necessary to include the words that appear in brackets. The company would obviously need to meet its tax obligations and that is understood, for that matter is on the record.

PN480

MR PARRY: The position is with these orders, and I know the practice of the Commission is to order gross amounts and then say - - -

PN481

THE VICE PRESIDENT: Only because of the difficulty in understanding Slifka, but, - - -

PN482

MR PARRY: Well, that is right and it is a complicated area the area of taxes, if you are aware, your Honour - - -

PN483

THE VICE PRESIDENT: It is, yes.

PN484

MR PARRY: - - - and the area of personal injuries actions - - -

PN485

THE VICE PRESIDENT: Yes.

PN486

MR PARRY: - - - they always make orders net.

PN487

THE VICE PRESIDENT: Yes.

PN488

MR PARRY: Now, whenever one settles an action such as this, one always talks about payments less appropriate taxation deductions. Now it seems to me that placing an obligation on an employer to make payments to a respondent are fairly clear. What Mr Slevin says, and I think we both understand, is that the employer is required to remit some of those moneys rather than to the employee to the tax department in respect of the employee. Now we don't see any great problem with the sort of words we have in brackets being included simply because it makes the matter clear. Obviously our concern is to protect Coal and Allied's position when it does remit money to the Taxation Department as it is required to do and not to the employee.

PN489

THE VICE PRESIDENT: When would it be remitting the funds? Only in the event that. I should make two observations. One is that it would be obvious that paragraph 4 of the order would be subject to anything that the Appeal Bench might decide.

PN490

MR PARRY: Yes.

PN491

THE VICE PRESIDENT: So even if the appeal were unsuccessful the Appeal Bench may decide to vary the form of that order anyway. And indeed at that point the taxation question could be ventilated. Secondly, do I understand it that the company's intent is to pay the gross amount into an interest bearing account in trust, as it were; and that the taxation issue only arises on the payment out of that fund? Either pursuant to the operation of this order or as varied by the Appeal Bench. if the appeals are not successful? Or is it paying in a net amount withholding some taxation payment?

PN492

MR PARRY: It is paid in a net payment.

PN493

THE VICE PRESIDENT: Right.

PN494

MR PARRY: And if it gets to the stage where an Appeal Bench says that money must be paid to the employees - - -

PN495

THE VICE PRESIDENT: Yes.

PN496

MR PARRY: - - - then it would remit to the employees the amount held in the account. Make payments to the Taxation Department at that time and also pay to the employees, subject to a more fuller consideration of the tax position - - -

PN497

THE VICE PRESIDENT: Yes

PN498

MR PARRY: - - - but pay the interest on that totally to the employees and then the matter of taxation is a matter between - - -

PN499

THE VICE PRESIDENT: Becomes the employees responsibility.

PN500

MR PARRY: - - - the employees and the Tax Department.

PN501

THE VICE PRESIDENT: Yes, yes. Well Mr Slevin, do you press your position, given that in some ways paragraph 4 is interim in nature, in that it is dependant both on the appeal being unsuccessful and it being confirmed by the Appeal Bench in any event. At that time, no doubt, if we get to that point there will be material before the Commission on the amounts, the interest and a more specific order could be drafted in any event. I take it - you are not arguing that the company should not meet its tax obligations? No.

PN502

MR SLEVIN: No, we are not arguing that at all. I suppose given that two things are certain in this life, your Honour, there would be no point in us pressing for it to be removed. It just seems to us there is mention of taxation again and we will get to that at the end of order 5 as well. It just seems to us that the mention of tax in this order, really does not take it anywhere; and, as you say, we do accept that if there is any tax to be paid, then of course it will be paid and if it is required to be remitted by the company then they will have to remit it.

PN503

THE VICE PRESIDENT: Yes. Well, I am uninclined to vary the form of paragraph 4 of the draft. As I have indicated ultimately, the precise language adopted will be depend on the appeal being unsuccessful and the attitude that the Appeal Bench takes to it. Can I turn now to order, proposed paragraph 5. As I understand it there are three objections that the CFMEU makes to this proposal. The first is the alternative payment to an interest bearing account. The second, is, you say that the payment should be made to each applicant with no exceptions; and I take it from what you have just indicated that you are objecting to part of the last part of that order?

PN504

MR SLEVIN: Well that part of the order that the respondents enter into an agreement with the appellant; but in the event of the appeal being successful, the respondent will repay all payments made including any taxation amounts paid by the appellant to the Australian Taxation Office, in respect of the payments concerned. So there is two links to that. There is the agreement about the repayment, then the agreement in relation to the Australian Tax, or to the taxation amounts.

PN505

THE VICE PRESIDENT: Yes. Well, let us go through the issues. I understand the first one. That is, you object to the alternative being to pay to the applicant or into an interest bearing account. Perhaps if I deal with that one from you, Mr Parry. Why is the alternative provided for, when it was not argued?

PN506

MR PARRY: It is simply said today that that would provide adequate protection to the employees. That the moneys would be in an account and preserved for them and able to be dealt with in the event the appeal went either way with simplicity. That is why we have included that.

PN507

THE VICE PRESIDENT: All right. I am not inclined to grant the alternative, being the interest bearing account. My intention was that the moneys would be paid to the applicants. The issue of the repayment of moneys was only ventilated by the appellant in the stay proceedings in respect of the lump sum payment. I have reviewed the transcript and that is my clear understanding of what was put on that occasion. I want to move to the next question, and that is the exemption of certain applicants.

PN508

Mr Slevin, can I deal with this in a couple of parts. The first is, bearing in mind that I was seeking to address the question of balance of convenience; and on the one hand protect the appellants position in relation to what may well be very significant lump payments, relating to loss of remuneration and also to balance that against the position where there may be some applicants in a position of hardship.

PN509

It is not clear to me why I would require the appellant to make payments. Let us start firstly with Mr Bega and Mr Hebbie, who have apparently entered into an agreement with the employer, part of which indicates that they accept they are not fit to work and agree not to accept employment or to work in any capacity, about or in connection with the operations with a coal or shoal mine in NSW. Why in those circumstances would I require the employer to make weekly or fortnightly payments to them?

PN510

MR SLEVIN: We do not concede that those agreements under the Worker's Compensation legislation necessarily have an impact on their entitlements under the order of Deputy President Leary. That is a matter, that no doubt, is going to be argued if further evidence that the appellants handed to you in the hearing, is sought to be relied upon or used in the appeal proceedings.

PN511

THE VICE PRESIDENT: Are you contesting the facts upon which paragraphs 5 (a) and (b) are based, or are you - you are not contest - well, let me put it this way. Do I take it that you are not contesting that they have indeed done what the appellant says they have done, you are contesting the relevance of that for these proceedings. Well just as a matter of merit, why would I provide that in a stay order that the appellants should pay them some fortnightly amount that they would have been entitled to when they have in effect commuted their commuted their Worker's Compensation benefits and enter into a statutory declaration of this type?

PN512

MR SLEVIN: Well a number of reasons. The first of which is that this wasn't - our alternative position was put to you and provided to you prior to the hearing and provided to the other side prior to the hearing.

PN513

MR SLEVIN: This issue was not ventilated at the hearing before you; and it could have - but our alternate position was not addressed in the hearing, so for us to - and had it been we could have brought to you a fuller argument about the impact of the commutation on the order; and it was not raised by the appellants and so there was no need for us to respond to that argument.

PN514

THE VICE PRESIDENT: It may well be an issue that is ventilated if we get to this point under 170CH. There is - as I have already found an arguable case that her Honour did not correctly apply section 170CH, that is ultimately the view of the appeal bench, then absent any other appealable error, then presumably it would either remit that matter to her Honour for further hearing or deal with the proposition itself. In which case, that would provide a forum for you to argue the relevance or otherwise of the worker's compensation arrangements.

PN515

I am only here dealing with the stay and my intention is to try and ameliorate hardship that applicants may be suffering as a result of being unemployed or not in receipt of any income, pending the determination of the appeal. Now, in that context, why would I provide in an order that the employer would pay fortnightly payments to these two employees - former employees?

PN516

MR SLEVIN: Because they were successful applicants in the initial proceedings and our primary argument here has been that they should enjoy the fruits of their success in the litigation; and we opposed the stay on that basis. We put the alternate position, as a lesser position, had stay not being granted they would be entitled to be reinstated as of 13 August. Now they are going to have to wait for appeal proceedings. And in effect, the hardship occasioned by the wrong suffered by them as a result of the dismissal and is ongoing, for that reason, we would say that it is a matter of discretion, meritorious for the order to include those people.

PN517

THE VICE PRESIDENT: What do you say in relation to paragraph (c).

PN518

If respondent is in receipt of Worker's Compensation payments and even if they were reinstated that is what they would be getting.

PN519

MR SLEVIN: Well, again, these issues were not ventilated because the appellant chose not to in relation to our alternate position. In relation to Mr Slade, I am not aware whether he is available for light duties, for example, and in those circumstances New South Wales legislation there is an obligation that the company find them light duties. So he could have been reinstated in those circumstances; and I understand that although there has been no indication from him, the appellants, I understand that they are talking about Mr Slade in that regard there. He is the only one with any evidence that he is on Worker's Comp payments.

PN520

THE VICE PRESIDENT: All right. In relation to (d) and (e), leave aside for a moment the question of when they were in full time employment. Why would I require the employer to make payments in respect of persons who are currently engaged in full time employment. If I did not stay the order, that part of the order, they would be reinstated. They would only be getting one wage then, why would I in a stay order, make provision such that they get two wages?

PN521

MR SLEVIN: Well it depends on how much they are receiving. Some of them may be working at the local store as a storeman and packer and casual rates available getting $10 an hour, the rate at the mine at the moment is $22.80 an hour, so they are suffering - - -

PN522

THE VICE PRESIDENT: Well then why wouldn't I vary the order such that it not apply to any - or the respondents in the appeal who are not ready, willing and able to perform work at the request of Coal and Allied, due to the fact that you are engaged in full time employment. Then an individual can make an election. They can decide to make themselves available to work for Coal and Allied, I will come to in a moment what that might mean -and if they, or they can choose to continue in their current full time employment.

PN523

MR SLEVIN: Well that would be up to you, but they would be reinstated under the orders anyway, they won't stay.

PN524

THE VICE PRESIDENT: I appreciate that.

PN525

MR SLEVIN: And they would have that optional problem is that also there is in the orders of Deputy President Leary, there was the option for the appellant to enter into discussions with each of the applicants about when reinstatement would effectively take place.

PN526

THE VICE PRESIDENT: Yes.

PN527

MR SLEVIN: They chose not to do that. They chose not to meet these arguments when the hearing of the matter was before you. It seems to me that coming to the settlement of the orders, where they have chosen to be silent in these matters, they shouldn't be given the advantage to now come and argue these matters which we regard as substantive matters, rather than just - - -

PN528

THE VICE PRESIDENT: Yes. Well, Mr Slevin, I do not disagree with your disagreement of the appellant on that point, and I share it. I think these issues should have been ventilated; and indeed I asked the appellants what was the purpose of putting in the statutory declaration material, was it going to balance of convenience; or was it simply going to an argument that had they been given an opportunity under 170CH to argue those points, that they would have put that material; and it was the latter that they chose. Be that as it may, my concern is to ensure that the order operates fairly in the circumstances.

PN529

Now the reason why I have listed the matter is to provide both parties with an opportunity to put what they wish about these arguments. Now if the applicant - if that part of the order was not stayed, then, yes, each applicant who is in current full time employment would have to make a decision. I do not see why the stay should put them in a more advantageous position. They can enter into discussions. I am not seeking to preclude, if I make an order of the type I have outlined, that is the ready willing and able to perform work criteria, I am not seeking to preclude there being some discussions between the parties about how that might operate as a matter of practice in each case. And there may be an agreement with a bit of good will on both sides where someone is earning less in another position, that there is some sort of top up arrangement applied, rather than - that would suit no doubt the company's convenience because they would not be paying as much - may suit the applicants as well.

PN530

Those sorts of accommodations can be made and if necessary the order can be varied to reflect them over time. For the life of me I do not see how a stay order can put someone in a more advantageous position than they would be in if the order subject to appeal was not stayed; and I think that is what this does; in relation to those who are in alternative employment.

PN531

MR SLEVIN: There are a number of options, it does not necessarily do that, your Honour, and that is where not being able to - because I do not have instructions to say who or who is not working and what they are or are not earning. So - - -

PN532

THE VICE PRESIDENT: Yes. No, I am not asking you to go to the specifics of the individuals, I am just dealing with it as a general proposition.

PN533

MR SLEVIN: I understand what your Honour says, but it seems to me that it is a matter for the Appeal Bench to deal with ultimately, if they are to give effect to Deputy President Leary's decision, then to be reinstated with no loss, other than the period between now and the appeal being determined is a relevant period for any orders that may arise from the Appeal Bench. If we do it piecemeal, which is, you know, using the stay orders and at the same time engaged in a balancing act, it just becomes that much more complicated for the Appeal Bench.

PN534

THE VICE PRESIDENT: I do not see that I think it is a balancing act, I agree with that, that is what balance of convenience is seeking to do. I think, well, as I have indicated there is an arguable case; and one that you are going to have to meet on section 170CH and there is Henderson's case, a Full Bench authority to overcome on that point as well. So it seems, we are using the language of stay decision that the appellant has a reasonable prospect of success on remedy. In which case the Appeal Bench would have to consider these issues anyway. But in any event, is there anything else you wish to say about paragraphs 5(a) to (e) before we come to - or (f) rather, before we come to the last paragraph of the appellant's proposed order in paragraph 5?

[4.33pm]

PN535

MR SLEVIN: Nothing further, your Honour. Other than the concern that we have about that approach that has a, that relies on the goodwill of the parties. I don't think there is goodwill between the parties.

PN536

THE VICE PRESIDENT: Yes, it might have been a tad optimistic on my part but nevertheless- - -

PN537

MR SLEVIN: It is the top up aspect that concerns us, your Honour, and we would appreciate an order to that effect.

PN538

THE VICE PRESIDENT: It seems to me that both parties have an interest in pursuing that. The company has a financial interest and your clients have an interest in maximising their job security and I would hope that there would be a sensible approach in relation to that but I will be providing once I conclude this exercise with leave to both parties to ask for the stay order to be brought back on in the event that you can't sort out what ought to be eminently sensible, practicable solutions to some of these problems, so I am not seeking to foreclose argument on that point.

PN539

Can I come to the last paragraph. Just before I do that, Mr Parry, the only thing I had for you is in relation to paragraphs (d), (e) and (f). What would be your opposition to, or do you have any, to replacing those with the proposition that the respondents who were not ready, willing and able to perform work at the request of Coal and Allied due to the fact that they had engaged in full time employment elsewhere would be excluded from the effect of the order.

PN540

MR PARRY: My only concern, your Honour, is that there may well be, and we are aware of some, that are in full time employment elsewhere, it would be unfortunate if they had to choose to leave that, and I am trying to avoid a situation where they are forced to make a choice which your Honour's articulation may well lead to. I am not saying it is a bad one, I am just concerned that - - -

PN541

THE VICE PRESIDENT: And so am I. The difficulty I have is that I think, if I didn't stay the order they would have to make a choice anyway and the, if you take - I agree, it is regrettable that they would have to make a choice in circumstances where the nature of appeals has an element of uncertainty about it for both sides and they may be foregoing secure full time employment for the uncertainty of an appeal outcome, but it would be open to the parties, and if necessary to seek variation of the order to protect the legal position of the appellant, to have discussions with a view to working out a satisfactory solution in relation to each of the applicants who are in that position where they might be being employed.

PN542

For argument sake, we take a simple example that their ordinary remuneration employed by Coal and Allied was $1000, or let us say $2000 a fortnight. They are currently earning $1000 a fortnight. Their election then is to either forego the $1000 and be ready, willing and able in which circumstance, you have to pay $2000 a fortnight and they are $1000 a fortnight better off, using gross figures for the moment.

PN543

An alternative to that would be for you to provide the difference between what they are earning elsewhere and what they would be earning. That provides you with a financial benefit in that you would be paying less, and it provides them with the benefit of the employment security. I can't, in an order, deal with those sorts of scenarios absent the factual matrix, but that would be an option for the parties to consider.

PN544

I am not suggesting that you engage them. I understood your submissions to be that there might be practical problems if they were on site and working and I want to avoid a silly outcome where they are brought in and they stay in a shed for the duration of the shift. There ought to be a sensible approach to it but nor do I see the merit in providing them with, or you providing them with their normal rate of pay on a fortnightly basis when they are already receiving money for performing work elsewhere.

PN545

MR PARRY: Well that really involves almost another form of order you are suggesting, your Honour, because it contemplates people receiving something if they remain in full time employment whereas the proposal we have put forward is they don't receive anything if they remain in full time employment. So what your Honour is looking at is another order to address those people's position.

PN546

THE VICE PRESIDENT: No. What I am saying is that instead of paragraphs (d), (e) and (f) there would be a paragraph that would indicate that any of the respondents who is not ready, willing and able to perform work at the request of Coal and Allied would be excluded from the operation or the benefit of the fortnightly payments. What I am suggesting in relation to top up and other arrangements, is those are options which the parties can discuss in the light of each individual's practical circumstances and you can seek a variation to the order to address those particular circumstances. It is just that there isn't any factual material before me today to go beyond the ready, willing and able.

PN547

MR PARRY: No, but it would be unfortunate if the order operated so that it, in effect, encouraged people to leave full time employment so that they got an entitlement to money under the stay order and that would be an unfortunate outcome of that.

PN548

THE VICE PRESIDENT: Yes, but I don't disagree with that but I think they do that in the knowledge you have established that you have an arguable case with a reasonable prospect of success, at least in relation to the remedy point. So they would be leaving, potentially leaving secure employment for the uncertainty of litigation.

PN549

MR PARRY: I understand what your Honour says.

PN550

THE VICE PRESIDENT: Can I just go to the last section of paragraph 5. Before I do that, is there anything else anyone wishes to say on paragraphs (5)(a) through to (f)?

PN551

MR PARRY: Obviously we would make submissions about (a), (b) and (c). Mr Slade, if it becomes relevant does, I do have a certificate from him saying he remains unfit from work and not suitable for light duties which is current, so his situation hasn't changed from material as placed before your Honour in the stay application last week.

PN552

THE VICE PRESIDENT: Mr Slevin, is there anything you wish to add?

PN553

MR SLEVIN: No, your Honour.

PN554

THE VICE PRESIDENT: Okay. Well, I would indicate that I would not propose to vary paragraphs (5)(a), (b) and (c). I would replace paragraphs (d), (e) and (f) with a provision which would exclude respondents who are not, or any of the respondents who are not ready, willing and able to perform work at the request of Coal and Allied.

PN555

If I can go now to the last part which is in two sections. The first is that the amounts provided be net, or that would be fortnightly I suppose, remuneration. If I deal with that element first and then deal with the entering into an agreement. Mr Slevin, what is your objection to the employees receiving net fortnightly payments?

PN556

MR SLEVIN: I don't think we have an objection to that.

PN557

THE VICE PRESIDENT: Okay. If we then go to the second - I thought you - well that is fine. If we go to the second part the proviso that each of the respondents enters into an agreement.

PN558

MR SLEVIN: Yes. My objection to that is that, it seems to us that is a matter for the Appeal Bench. It may have been, well it was a matter to be argued before you. There was a question from your Honour from the bench the other day about our proposed order 2(b) that the payment of such monies shall not be recoverable should the appeal be successful. We didn't press for that order. It seems that the company now presses for an order in reverse of that.

PN559

THE VICE PRESIDENT: Yes.

PN560

MR SLEVIN: And we say well, there is no reason and that would be an unusual order for the Commission to make in these sorts of proceedings. If they want to make some sort of substantive application on the appeal because they want to take that money off those employees then it should be ventilated at that time.

PN561

THE VICE PRESIDENT: Yes. Mr Parry.

PN562

MR PARRY: The issue of repayment is a fairly significant one in many reinstatement cases. Full benches have recognised this on a number of occasions. If one pays money without the agreement and then the appeal is upheld, obviously those people have been paid money to which they are not entitled. In addition I should point out, to the significant sums they have received already. The employer is then in the position of having to litigate to recover that money. That litigation as your Honour would appreciate is complex, involving arguments about mistakes of law and mistakes of fact.

PN563

Now to avoid those complexities, it seems the most straightforward is that the employees agree that if the appeal is successful, they will repay the amounts. Now it is not a matter of great, I am uncertain why it creates quite the concern it creates. Presumably, these employees would appreciate that if the appeal was successful that they would have received moneys to which they weren't entitled. I am not sure of why it is a matter that is opposed quite so strongly.

PN564

THE VICE PRESIDENT: Why would there be a payment of taxation amounts withholding? Wouldn't the employer simply make a reconciliation at the next activity statement?

PN565

MR PARRY: If the employer enters into - starts paying the net remuneration to each of these employees from the date of the order, when those moneys are paid our advice is that they are moneys that are paid in respect of salary.

PN566

THE VICE PRESIDENT: Yes.

PN567

MR PARRY: Therefore, they are taxable at marginal rates. Therefore, when the payments are made, the employer has an obligation to remit tax to the Taxation Department.

PN568

THE VICE PRESIDENT: The withheld amounts, yes.

PN569

MR PARRY: But that is not money that is the employer's money.

PN570

THE VICE PRESIDENT: No, I appreciate that.

PN571

MR PARRY: Once it is paid by the employer in respect of the employee, so then the Taxation Department has the money. The employer has no right to recover it. The only right to recover it is through the employee who has, it is his money, it has been paid, obviously in error. He can get it back. We would then have to get it back off the employee. That is the advice of the taxation arrangements which will result in these circumstances.

PN572

THE VICE PRESIDENT: I am surprised by it to this extent that if the employees pay back the net amounts paid to them, so it is as if they were never paid wages, are you saying in those circumstances, you couldn't get the money off the Tax Office when you have overpaid? If you overpay the withholding amount, you rebalance it in the following period.

PN573

MR PARRY: Well it is not money which has been overpaid. It has been money that has been paid at the time in respect of wages and salaries. At some stage later you have changed the status of that money by, somehow the status of that money is later changed.

PN574

THE VICE PRESIDENT: Yes, exactly, yes. I know the Tax Office can be relatively heartless but if the status of the money, as you put it has changed and - - -

PN575

MR PARRY: But it is not money that - the status of the money has changed, but it has been paid to the Tax Department in respect of a person and his employment status. The employer once having paid the money, has given it to the Tax Department in respect of the employee. The employee has the right to recover the money.

PN576

THE VICE PRESIDENT: From the Tax Office.

PN577

MR PARRY: From the Tax Office. We believe there are significant complications with the employer seeking to recover that money.

PN578

THE VICE PRESIDENT: All right. Anything else you want to say about that provision.

PN579

MR PARRY: No.

PN580

THE VICE PRESIDENT: Anything else from either of you on the balance of the order? No.

PN581

I propose to vary the last paragraph by putting a full stop after the words:

PN582

a position no less favourable than that in which he was employed immediately prior to the termination of his employment.

PN583

and delete the words:

PN584

provided each such respondent will enter into an agreement.

PN585

Etcetera. I am not satisfied that the matter has been sufficiently ventilated. It was not raised as a concern in the stay proceedings and to the extent it remains a concern, it is a matter that can be addressed to the Appeal Bench.

PN586

I will issue an order giving effect to what I have just determined shortly. I would encourage the parties to have discussions in an effort to reach a practical solution to overcome some of the issues Mr Parry has been referring to. If there is a need for subsequent variation of the order, either if Mr Slade's light duty position changes or there is some other consideration, then parties are at liberty to apply in relation to that matter.

PN587

You will both recall that at the conclusion of the proceedings last Wednesday, I indicated that the parties should have discussions with a view to reaching an agreement in respect of these proceedings. I should also indicate that I have made arrangements through the President for Commissioner Harrison to be available at the parties convenience to conciliate in respect of this matter should the parties feel that is a worthwhile proposition. In order to deal with the, I suppose procedural niceties, the process would be for one or both of you to, by notification of a dispute, generate the file. It would then allocated to Commissioner Harrison. You should discuss with him questions of availability, etcetera.

PN588

There are, or there is one other matter and that is the correspondence about the appeal books. The Appeal Bench has been constituted and I need to talk to my two colleagues about how they wish to proceed, but I would image that we would be listing the matter for mentioning and programming and that would be the appropriate point at which to ventilate any non-compliance with the rules or indeed, any application to waive compliance with the rules. Okay, nothing further? I will adjourn.

ADJOURNED INDEFINITELY [4.51pm]