C2001/2221, Transcript of Proceedings [2001] AIRCTrans 2903 (26 October 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT McINTYRE

C2001/2221

APPEAL UNDER SECTION 45 BY
PACIFIC COAL PTY LIMITED AGAINST
A DECISION OF COMMISSIONER HODDER
IN BRISBANE ON 9 APRIL 2001 IN
U NO 20854 OF 1998 RE APPLICATIONS
FOR RELIEF RE TERMINATION OF
EMPLOYMENT

SYDNEY

10.01 AM, THURSDAY, 11 OCTOBER 2001

Continued from 7.9.01

Reserved for decision

PN117

THE VICE PRESIDENT: Could I have the appearances please?

PN118

MR WEST: I seek leave to appear with my learned friend, MR PARRY for the appellant, the applicant, for the stay.

PN119

THE VICE PRESIDENT: Thanks, Mr West.

PN120

MR B. DOCKING: I seek leave to appear. Appearing with me in due course will be MR T. SLEVIN, a legal officer from the CFMEU. Also presently appearing with me is MR G. BARNES, who is one of the respondent employees.

PN121

THE VICE PRESIDENT: Yes, thanks, Mr Docking. Yes, leave is granted in both cases. Mr West.

PN122

MR WEST: Your Honour, this is an application for a stay of the orders of Commissioner Hodder, which were made in part in his Judgment of a decision which was dated 9 April and in part formal orders which were made on 27 September 2001. May I inquire of your Honour whether your Honour has a copy of the formal orders made by the Commissioner on 27 September?

PN123

THE VICE PRESIDENT: Yes, I do.

PN124

MR WEST: Thank you, your Honour. They for some inexplicable reason were left off the affidavit of Anthony Barry Longland, sworn on 28 September and I would move on that affidavit.

PN125

MR DOCKING: Your Honour, can I indicate so far as that affidavit is concerned, I have no objection for it being relied upon as evidence for the purposes of the stay, however, I do ask that the employer and if necessary Mr Longland disclose fully what communications took place between the Associate of the President and the employer on or about 3 May 2001, concerning the stay. As I'm instructed those communications were not disclosed until the direction hearing before your Honour. Or it may have even been before a Full Bench. I was not present on that occasion.

PN126

THE VICE PRESIDENT: It was the Full Bench, yes. All right, I will see what Mr West has to say about that.

PN127

MR WEST: Well, your Honour, I don't know, is the simple answer. I asked for an affidavit to be prepared - it has been prepared. Mr Longland has attached a copy of the letter which was sent to the President's Associate, which is annexure 11, I believe. It is annexure - yes, 11. We write, "Dear Associate". It is not a letter which has been signed by Mr Longland. It is a letter from Mr Coleman, the Senior Associate. I don't know what was said between Mr Coleman and the Associate and, quite frankly, I can't imagine that it matters, but that is a matter for my learned friend and ultimately a matter for your Honour.

PN128

If we can get hold of Mr Coleman, I can ask for instructions as to what he said to the Associate and I can certainly let the Commission know if that is a satisfactory way of handling it, but Mr Longland can't add anything to it.

PN129

THE VICE PRESIDENT: Do you want to see what Mr Docking has to say about that.

PN130

MR DOCKING: Your Honour, it should be apparent from the submissions relied upon by the employees - if I can call them that as a shorthand expression - they rely upon in part upon that communication which objectively it appears was a request, or acquiescence, or both, in not having the stay application heard and I have developed in the written submissions how that is relied upon now as to why your Honour ultimately should dismiss part of the stay application, or at least take it into account if the Commission is minded to make any conditional stay orders.

PN131

THE VICE PRESIDENT: Yes, well, that is included in your submissions as I understand it, that I should take that into account, that 3 May letter.

PN132

MR DOCKING: Yes, your Honour, and may I note the disquiet of the employees and their representatives that communications took place about the stay without having them disclosed at the appropriate time to the employees or their representatives.

PN133

THE VICE PRESIDENT: Yes, all right then. Mr West.

PN134

MR WEST: May I just have a moment, your Honour? Sorry, your Honour. Your Honour, if I may, I will formally read the affidavit in the sense of notionally reading it, rather than out aloud. What the affidavit relevantly discloses is that the company has told the employees and their association that it would pay the employees who had succeeded before Commissioner Hodder, but only up until such time as a stay was granted by the Commission. Nothing particularly unusual about that. What it shows is also relevantly that there seems to have been a somewhat - we could almost say, an inordinate period of time, which elapsed between the handing down of the Judgment in April and the making of formal orders which it required.

PN135

The Judgment certainly required to be formalised by way of order in respect of the back pay component. Insofar as the reinstatement orders were concerned they were themselves integral to the Judgment. What could not be agreed it seems was the actual amounts of money that were involved and the terms on which it would be paid and it took - really it took the re-listing of this matter by way of the directions before the Full Bench and then a request to the Commissioner to have the matter re-listed, forcing the parties before the Commission to get the terms of the orders settled. It was not until 27 September that orders were made by the Commissioner which embodies the whole of the effect of the Judgment and it is those orders which on our application should be stayed.

PN136

I should say to your Honour, I have asked to discover what Mr Coleman said to the Associate. I can imagine what it must have been but I'm not going to say anything until I'm instructed about it in relation to that letter of 3 May, ABL11. It is plain from that that Mr Coleman was confirming that Melbourne was the appellant's preferred location for the hearing of the matter including the stay and then noting that specific orders regarding reinstatement and back payment have yet to be made - and it may be useful to await the finalisation of those orders before listing the stay application. The parties are currently corresponding on the terms of the draft orders.

PN137

I want to say one thing, it is one matter for a solicitor to speak to a Judge's Associate; it is quite another matter for the solicitor to speak to the Judge. In the ordinary course of litigation Associates will often speak to solicitors for one side or the other, either passing on message or whatever, but there is no suggestion here one would hope that his Honour the President had been spoken to directly, merely his Associate. Now, I will wait until I hear what I'm told about that matter and I will in form your Honour, if I might, as soon as I have that information.

PN138

It is plain, your Honour, that finally the only other evidence that we rely upon is the order made by the Commissioner on 27 September and that sets out there the full form of the orders which are currently operative and it is those orders which we seek to have stayed.

PN139

Now, that is the evidence on which we rely in support of the application for the stay. I don't want to say any more at this stage till we hear what evidentiary material my learned friends to put on, unless your Honour wishes me to say anything further. What I had proposed to do at a convenient time was to of course take your Honour to the fundamental principles but I thought I would do that after we knew what evidence my opponent wants to rely upon and also then to some of the cases which inform this area of debate and we've of course provided to your Honour a copy of - to your Honour's associate a copy of those cases and a list. If that is a convenient course, then that is what I would do. Unless your Honour wishes me to go further now.

PN140

THE VICE PRESIDENT: Well, I will see what Mr Docking says as to the evidentiary side of things first.

PN141

MR DOCKING: Thank you, your Honour. There should have been filed and served yesterday a statement of Gary William Barnes together with its attachments I propose to rely upon for the purposes of the stay of that statement. There are two areas in it which Mr Barnes wishes clarify. Your Honour might appreciate with Mr Barnes up in Claremont Central Queensland and his representative is in Sydney, E-mails are used but it does lead to some difficulties with the tyranny of distance that he has looked at the statement overnight, has pointed out to me this morning there are two errors he wishes to clarify.

PN142

I propose to put him in the witness-box, get him to confirm his statement is true and correct to the best of his knowledge and belief. Before doing so, he will correct those two errors, additionally he will clarify by reference to paragraph 16 on page 5 of his statement what is described as the group of seven respondents are not presently in paid employment. I think it is implicit if not expressly made clear in the statement. I also then - - -

PN143

THE VICE PRESIDENT: To make clear in the alternative order that you propose I think?

PN144

MR DOCKING: Yes, your Honour. In case it was said it is not crystal clear, I thought that should be made clear. Page 22, paragraph 56, I propose when Mr Barnes is in the witness-box, he will adopt a schedule which he has prepared to try to assist the Commission with indicative amounts of the amount of wages owed in back-pay, the amount of income which has been earned between dates of termination and date of the reinstatement and continuity orders of Commissioner Hodder on 9 April 2001. It also includes effectively what the back-pay figure will be for each of the 16 employees.

PN145

For one of them, he will actually have to pay money back but Mr Barnes is informed that that person, Mr Don Halverson, agrees to do so. These amounts are indicative, they may be out by a few dollars here and there but sensibly the employer has met with Mr Barnes in Claremont on 3 October 2001 where both sides are trying to crunch the figures and settle on the final figures. I think that process is nearly concluded. In terms of evidential material from Mr Barnes, I propose to tender photocopy of his pay slip which he receives because it seems the employer has been content with a notional fictional form of employment since 9 April 2001.

PN146

I don't think there will be any dispute that Mr Barnes, like all the others, are receiving these pay slips now weekly. The only issue is that the employer unilaterally has declined to let them work for their pay.

PN147

THE VICE PRESIDENT: That has been the position since April?

PN148

MR DOCKING: 9 April 2001.

PN149

THE VICE PRESIDENT: Yes. The payments are made weekly, are they?

PN150

MR DOCKING: Yes.

PN151

THE VICE PRESIDENT: Right.

PN152

MR DOCKING: Also - and I apologise it is my working copy but I should make the record clear. I propose to tender a copy of Commissioner Hodder's directions which make it clear the recent proceedings before the Commission were listed for the purpose of the orders in relation to lost remuneration. Now, I accept I came back into the matter and did appear in Brisbane. The successfully employees did have arguments with the employer about what should be the loss remuneration. I think it was nine of the employees said they should be put back into their positions, not that they were in immediately before termination which is in the Mines Services areas, it is there referred to in the decision as the "chain gang, the King Brown snake pit" and the like where the Commissioner found employees were put there to demean them.

PN153

Commissioner Hodder has not handed down a decision yet but it is confirmed the orders he rejected that application and put them back in other than the positions they were immediately before termination, Mr Longland for the employer on that occasion argued he was functus and he had already made his decision and in effect his orders. I should make it clear the employers accept that the orders for continuity and reinstatement were made in the decision 9 April 2001. So I want to provide the direction which confirm was only ever listed for back-pay, I accept the applicants.

PN154

Additionally I propose to rely upon some of the transcript and exhibits in the substantive proceedings. I have made an inquiry this morning whether they can be retrieved from the Registry exhibit PC56 which is a bundle of black lists still to go because what is relied in the stay by the employers will be taking the Commission to these black list still to go. So the Commission just does not read them about them in the decision but can see what they actually comprised. There's also a bundle of exhibits and the transcript which I think may have been filed with the Commissioner yesterday that I propose to go to but that is evidence in the substantive proceeding before Commissioner Hodder.

PN155

I think that is the outline of the evidential material I propose to rely upon. I will also make reference to some of the employer submissions below. I notice by way of example it is suggested your Honour should take into account viability on the stay. The difficulty I see for the employer with that course of action is - and I've reviewed the written submissions of the employer on remedy below - there does not seem to be under the heading of "reinstatement" as the appropriate relief any employer submission going to viability.

PN156

By that I mean economic financial viability. Indeed in the employer's written submissions below on compensation as an alternative to reinstatement it was in effect conceded that viability was no issue and I will need to go to those submissions because the obvious contention before your Honour will be that it is something that leave for appeal would not even be granted in the substantive appeal and is not properly taken into account on the stay and the point about liability being economic or financial liability was not an issue taken below in the written submissions. So I'm not sure if Mr West wants me to call Mr Barnes now and deal with his evidence.

PN157

MR WEST: I don't want him to call Mr Barnes at all, your Honour. Mr Barnes has a statement. I'm in no position to cross-examine Mr Barnes about all sort of matter. I got this yesterday, 2 o'clock this was served. I'm in no position, have no instructions about it and it is - my learned friend will not doubt do with it what he wishes. It is in our respectful submission irrelevant. I'm not going to try and stop him relying on it, it would take longer than dealing with it and so that is our position. He can make the amendments to Mr Barnes statement from the bar table.

PN158

I don't require him to be put in the box, I don't require him to be sworn either. We can accept it as a sworn statement for what it is worth. It is - I won't say anything more about that at the moment. So that is Mr Barnes. There is a lot of material that came with these submissions yesterday which appears to be evidence from the trial. All that is going to be objected to. That is not relevant to the stay hearing. This is not the application for leave to appeal, it is not the hearing of the appeal. It is an application for a stay and none of this material is relevant to that question. Similarly all this matter about viability has got nothing to do with it either. It is a matter of the proper construction of the legislation and if the company is the richest company in the World, so viability might not be an issue, but the subsection requires more than that and it just is irrelevant and may I, sir, if I could deal with that in due course. May I, while I'm on my feet, I want to deal with the question of the evidence. My instructions are these, this is what Mr Coleman said to the associate:

PN159

I'm instructing that Mr Coleman spoke to the Commission a couple of times and to Ms Doust from the CFMEU a couple of times. A discussion was initiated by the associate. It was regarding the location of the stay-hearing, we wanted it in Melbourne and the union wanted it in Sydney or Brisbane.

PN160

That is what he told the associate, they are my instructions. That is consistent with, it really appears from the letter, the first paragraph anyway. That is our position, your Honour, so Mr Docking will take his own course about correcting the statement.

PN161

THE VICE PRESIDENT: Would you deal with that point then, please, Mr Docking?

PN162

MR DOCKING: Certainly, your Honour.

PN163

THE VICE PRESIDENT: What were the changes that you seek to be made to Mr Barnes' statement?

PN164

MR DOCKING: Your Honour, before doing so can I inquire whether Mr West requires an adjournment to deal with Mr Barnes' statement? Might I say that would be surprising because - - -

PN165

THE VICE PRESIDENT: Look, he has not asked for an adjournment, Mr Docking.

PN166

MR DOCKING: Well, as long as that is understood, your Honour.

PN167

THE VICE PRESIDENT: At least for the moment, we can cross that bridge when we get to it, if we get to it. What are the changes you want to make?

PN168

MR DOCKING: Your Honour, paragraph 16 on page 5, "Confirmation that those seven employers are not presently in paid employment".

PN169

THE VICE PRESIDENT: Yes, right.

PN170

MR DOCKING: Paragraph 28 on page 10.

PN171

THE VICE PRESIDENT: Yes.

PN172

MR DOCKING: The four, "for example, the respondents in company housing made a number of offers to pay the $17.50 rent per week to the company and these offers were rejected".

PN173

THE VICE PRESIDENT: Sorry, what is the precise change you wish to make to paragraph 28?

PN174

MR DOCKING: It would be inserting the sentence, "The respondents" - - -

PN175

THE VICE PRESIDENT: Inserting it where?

PN176

MR DOCKING: Your Honour, can the Commission see there's 28 and 28.1?

PN177

THE VICE PRESIDENT: Yes.

PN178

MR DOCKING: The last two words in 28 are "for example."

PN179

THE VICE PRESIDENT: Yes.

PN180

MR DOCKING: then inserted before those two words - - -

PN181

THE VICE PRESIDENT: Right.

PN182

MR DOCKING: - - - is the sentence "the respondents in company housing made a number of offers to the company to pay" - - -

PN183

THE VICE PRESIDENT: Just a second, "of offers to the company to pay" - - -

PN184

MR DOCKING: - - - "the $17.50 per week rent and these offers to pay were rejected by the company."

PN185

THE VICE PRESIDENT: Right.

PN186

MR DOCKING: The next correction is page 17, paragraph 44, second line. At the end of the second line the words "took voluntary redundancy" should be deleted and in lieu thereof "was terminated" should be inserted.

PN187

THE VICE PRESIDENT: Right.

PN188

MR DOCKING: By reference then to paragraph 56 on page 22 I propose to tender Mr Barnes' schedule of indicative amounts. Perhaps before doing so I should tender the statement and its annexures on the stay, or whether your Honour wants to treat it as being read, I'm in your Honour's hands how it should be marked?

PN189

THE VICE PRESIDENT: Well, does Mr West want to say anything about that?

PN190

MR WEST: Only just as a statement that has been read, your Honour, in the same way Mr Lawn's affidavit was read.

PN191

THE VICE PRESIDENT: All right, okay, I will treat the two the same way.

PN192

MR DOCKING: Your Honour, I then provide or tender a copy of Mr Barnes' schedule.

PN193

THE VICE PRESIDENT: Maybe I should just treat all of this as part of Mr Barnes' statements? This is a schedule for the 16 people of - - -

PN194

MR DOCKING: Your Honour will see the wages' column is the lost remuneration in terms of the wages component. It does not include the superannuation which will need to be paid, it only includes the wages' component.

PN195

THE VICE PRESIDENT: This is the wages lost between?

PN196

MR DOCKING: Date of termination and Commissioner Hodder's re-instatement in continuity orders made on 9 April 2001.

PN197

THE VICE PRESIDENT: Right.

PN198

MR DOCKING: Some of the employees were in company accommodation and therefore the rental amount of $17.50 was deducted for the relevant period and that is the deduction appearing under the heading: Rent.

PN199

THE VICE PRESIDENT: Yes.

PN200

MR DOCKING: The reference to the column "pay-back" arises from the lost remuneration orders made by Commissioner Hodder on 27 September 2001. There was in effect option A or option B permitted. The employees could elect to pay back all of their long-service leave, annual leave and sick leave as well as the retrenchment pay component of 3 weeks per year's of service, I think that was option. The alternative was option B, that they would pay back only the 3 weeks per year of service and keep their paid out annual leave, long-service leave and sick leave. In other words, option B meant your banks only started being re-credited from 9 April 2001 and did not get adjusted for, whether it be 8 years or 18 years of entitlements that were owing.

PN201

The income column is the income earned pursuant to the statutory declarations that have now been provided under the orders of Commissioner Hodder to the employer. There's been left out an amount of superannuation, that is the employees' contributions will have to come out, but Mr Barnes understands that that will just be around about $2000 and then to give the Commission some indicative figures of what is involved in the loss remuneration orders one then looks at the total, out of those will have to come some superannuation but it gives a sufficient picture to the Commission for the loss remuneration.

PN202

Now, I can confirm, as set out at the very end of the employee's submissions, that they will consent in a pragmatic way to having the lost remuneration or back-pay put in the interim to an interest bearing account.

PN203

THE VICE PRESIDENT: Right.

PN204

MR DOCKING: I'm not sure if that will help remove one of the arguments in today's proceedings, obviously the employer will have to crunch its figures and, I think as I said before, both sides are close to agreeing on what the lost remuneration or back-pay figures are, but it may remove one argument today if the employer also is willing to agree to that course of action of putting the lost remuneration into an interest bearing bank account. If and when the employers are successful they would then obviously get both the interest and the back-pay owing to them in terms of lost remuneration.

PN205

THE VICE PRESIDENT: Yes, is that what was done in the Hunter Valley number 1 stay-order?

PN206

MR DOCKING: It is but - if I can just make an inquiry with Mr Slevin? I'm instructed by Mr Slevin that as of last Friday those moneys should have now been paid by the employer in the Hunter Valley 1 case into such a bank account. Certainly the order of Vice President Ross was requiring that to take place but the figures in that matter had not been worked on and developed in the way they have in the Blair Athol case.

PN207

THE VICE PRESIDENT: All right.

PN208

MR DOCKING: I also, your Honour, wanted to, whether it be tender or have treated as part of Mr Barnes's statement, is a copy of his weekly pay slip for the pay period ending 3 October 2001.

PN209

THE VICE PRESIDENT: I will just treat it as part of the statement again.

PN210

MR DOCKING: Your Honour, as I indicated, and I will deal with it in submissions, I do propose to refer to evidence in the proceedings below, relying upon that evidence for the purposes identified in the written submissions. First, the evidence is fatal to the employer stay application because a black list still to go and the like will mean that Commission Hodder's findings are not properly even amenable to leave to appeal being granted and secondly, it will go to the hardship and prejudice that has been suffered by the employees, including being put on a black list still to go and being publicly accused by General Manager Bates of being the poorest performing employees and how that has had an adverse impact on employment prospects, self esteem and some employees and their family members have been treated for depression and the like. So I will deal with the evidence in the substantive proceedings during my submissions.

PN211

THE VICE PRESIDENT: All right. Well, yes, then Mr West.

PN212

MR WEST: Your Honour, can I deal with the question of the interest bearing bank account first. In the Hunter Valley case the, what I will call, back-pay was directed to be put into an interest bearing bank account and that is a course with which Coal and Allied agreed and my client and our client here agrees to that too. There was, as in this case, in the Hunter Valley case an ongoing chronic failure between the parties to agree on what the numbers were as to what those - what the total amount of moneys deposited to that IBD were to be.

PN213

We complained about that to the Hunter Valley Full Bench and asked that the Bench direct one of its number to take charge of that and as it were settle it so that there could be no one going fight about what the money was. Now, I don't expect there to be any like problem here. We don't know. The easiest way to accommodate that, if I may respectfully submit, would simply be for your Honour to give the parties leave to apply to your Honour on 24 hours notice if there is some ongoing problem about the quantification of the moneys to go into the IBD and to there await the outcome of the appeal. That takes care of one whole issue.

PN214

That really leaves then the question of whether the balance of Commissioner Hodder's orders ought be stayed and if so upon what basis. In our respectful submission, ordinary principles applicable in this Commission would indicate that they should be stayed. If the Commission were of the view that some term should be imposed then that is a matter for the Commission and we can debate that, as it were.

PN215

THE VICE PRESIDENT: Mr West, the balance of the order you are referring to is the - - -

PN216

MR WEST: Weekly payments.

PN217

THE VICE PRESIDENT: - - - weekly - yes, pursuant to the reinstatement order.

PN218

MR WEST: That is so, yes. Now, I have got to be honest, I don't understand what is going - I don't understand why all this fuss is being created. I read with interest the rather florid submissions that were filed yesterday on behalf of the respondent. I simply don't understand the allegation that is made against our client that it is breaching the orders of the Commission. That simply is bizarre. The evidence makes it clear that our client has complied with the order, has paid the people the subject of it their weekly payments and it said: if and when there's a stay granted we will stop doing that or comply with the terms of the stay. We don't want you at work, there is nothing for you to do.

PN219

They have every right to say that. That is not breaching anything. There seems to be some concept here that reinstatement is followed by some order for requirement for attendance at work and the performance of work. That is not so at all. So I don't understand that and it is repeated and repeated, quite why I don't know. May I deal with more traditional matters. The first thing we ought to show is it was an arguable case on appeal. Now, the judgment the subject of - the decision the subject of this appeal goes to some hundred pages or so. The first hundred paragraphs are concerned with mixed questions of fact and law, including a lexicon about stare decisis and ratio decidendi, quite why is not apparent.

PN220

The Commissioner quotes ad nauseam from the submissions of the union without any apparent analysis of what is being said. That is a feature of this decision. Rarely is there any quote of anything the employer has said and sometimes what the union's submission said is repeated. The same quote appears on numerous occasions. Be all that as it may, may we focus upon what we say is wrong with this judgment. The fundamental problem with it is that the Commissioner has misconstrued and misapplied section 170CG(3). That error is jurisdictional. What the Commissioner has done is to say: well, it looked like there was a valid reason for termination related to redundancy, to put it colloquially, but because I'm satisfied that what happened was unfair then there's no valid reason.

PN221

Now, that is just wrong. Section 170CG(3) requires the Commission to answer the question: is this termination harsh or unjust or unreasonable? Those terms are not internally synonymous. The statute then requires the Commission in addressing that question to have regard to five matters, A to E. Was there a valid reason related to the conduct or performance of the employee or operational requirements. It is a dichotomy. Some cases in the Commission are treated as a trichotomy but essentially it is dichotomist. Now, that is a single question. You identify from the evidence the nature of the termination.

PN222

Having done that, you asked the question, was there a valid reason for this? Was it one kind or the other? Having done that you answered that question, yes or no. Then you go on to say, "Was that reason told to the employees?" That is either, yes or no. Then there are two other sub-questions in C and D, if it was a question of conduct, whether they were given an opportunity speak in their own defence, or if it is a question of discipline and the like, under D:

PN223

Whether the employer was given an opportunity to respond to any reason related to capacity or conduct of the employee.

PN224

That is C. Then D:

PN225

If the termination related to unsatisfactory performance, whether the employee had been warned about that unsatisfactory performance before the termination.

PN226

Now, those two sub-questions raise the issue that if, in fact, you have a valid reason for termination relating to the operational requirements of the employer's establishment, whether C and D have any operation at all in those circumstances. Our case is they don't. Those two paragraphs are carefully drafted, C expressly using the words which appear in A, so that A and C are directly linked, that if you have a reason related to capacity or conduct then as in C whether the opportunity to respond was given. That is not the reason for the termination. That provision is never enlivened.

PN227

Similarly in D, if it is unsatisfactory performance well then it is not related to capacity for redundancy, it has got nothing to do with it. That does not trigger either. Then there is E, any other matters which requires the Commission to directs its attention to the circumstances of the particular termination and the elements which attach to it and whether there is anything about it which the Commission considers relevant to that matter to inform its mind as to whether in the overall sense there was harshness, unjustness or unreasonableness. Now, that is the task and it is jurisdictional, because unless that question is answered, harsh, unjust or unreasonable by reason of those matters you never get to CH.

PN228

When you get to CH, there are more jurisdictional tests. So that this statute has been drafted in such a way that the gates must be carefully addressed before they are opened. They require the Commission to go through a series of examinations of issues before they decide, for example, in Remedies there is an obligation under CH2, the Commission must not make an order under subsection 1, which is Remedy, unless it is satisfied having regard to all of the circumstances including that. It must address those matters and under CH2E it must address any other matter the Commission considers relevant. This statute is different from the old IR Act. Reinstatement - - -

PN229

THE VICE PRESIDENT: I don't think you need to labour that point, Mr West.

PN230

MR WEST: No, I don't think I do, thank you, your Honour. So that those two jurisdictional batteries have to be examined. Now, it is plain, in our respectful submission, that the Commission - I will cut right to the chase, he didn't do any of that. He misunderstand and misconstrued section 170CG3 and he never addressed his mind to the issues in CH. The last one is a very brief point, although the written submissions will take a little longer to explain it, but I can do it orally, briefly. If I can take your Honour to paragraph 197 of the judgment - the decision. Perhaps I should start back a little earlier, perhaps I should got to 193. 193 is the second of the paragraphs dealing with Remedy. They open at 191 on - my copy is an Internet copy of the judgment. I can't be sure the pagination is the same, but the paragraphing is.

PN231

In 193 the Commissioner has simply turned to the question of Remedy, he quoted above 192, subsection 1 of 170CH. Then quotes from - in 192, the Australian Meat Holdings case and interestingly picks the paragraph that says:

PN232

Given the broad nature of the discretion in CH3 and 6, we think the question of whether reinstatement is appropriate in a particular case will be a matter for the judgment of the Commission member at first instance.

PN233

Now, having quoted that he then says:

PN234

I've had regard to 3 and 4 as the appropriate remedy in the light of such findings. From my assessment of the evidence I am satisfied of the circumstances that reinstatement is appropriate for each of the applicants.

PN235

So he has already made his decision. Having seen that it is a matter for him, he then says: I've looked at all that, and the answer is X, reinstatement is appropriate, before he ever addresses the elements in CH2, which were jurisdictional. They follow that conclusion in the judgment. Now, one might say: well, you are making too much of the structure of the judgment, but put that aside for the moment. We have been accused of applying a fine-tooth comb, a very broad gap comb was used to draw the notice of appeal. Not a fine-tooth comb at all. If one goes to 197, the error is palpable. He says:

PN236

I'm satisfied that there's no evidence before the Commission that indicates whether any of the dismissed applicants' former position is vacant or not, and that such makes it possible for the Commission to make an order under subsection 170CH3A and the alternative under 170CH3B.

PN237

Then by way of clarification he makes the order. That is the one thing he couldn't do. He was required, jurisdictionally required to consider under 170CH2 the four identified matters including the fifth - then the fifth matter, any other matter the Commission considers relevant. Now, whether or not the jobs were still available in a reinstatement case -where the jobs are ..... in a redundancy situation, even though he had found no valid reason for what was being done, was a fundamental question to knowing what the effect of an order might be.

PN238

It is not just a question of saying: well the viability on the employer's undertaking establishment or service. Viability is not simply a question of its financial success. it has to do as well with the operational conduct of the mine. One of the things that might be relevant to that is whether or not given the operational structure of the mine, the re-employment or reinstatement of these people was appropriate. Given that, it is for the employer to decide the size of its workforce and how it is engaged. Now, the Commissioner had no regard for that. It is as though he were told, go and bomb that target, and it is on a map and you can't bomb until you can see it. He got over the target, he couldn't see it, then released his bombs. That is what he did, with great respect to him.

PN239

Now, that is just fundamentally in the teeth of 170CH, because reinstatement is just one of the orders of remedy which the Commission can make. It is but one. The order to reinstate is made if the Commission considers it appropriate, and I won't weary your Honour with that, it is different from practicable. It is a much broader, more focused question now. It is not whether it is simply as a matter of mechanics you can put them back, it is question of whether it is appropriate in all the circumstances to put them back.

PN240

Then the Commission is asked to consider whether, in the circumstances, if you are going to make an order under 3, you have to consider whether it is appropriate, you may also make an order for payment of lost remuneration. You may also consider, or you must consider, if there's any other payments been made, for example, by way of damages orders, you have got to off-set that and then the Commission is required to consider in addressing which remedy, if any, it is going to choose, whether reinstatement is inappropriate and whether it is appropriate in all the circumstances to make a money order. Now, that is a broad gamut of considerations and the Commission is required to enliven each of them because the Commission must decide upon those alternative orders and in doing so, before it makes it, it has to have regard to the matters at 170CH(2). That laundry list has to be addressed in relation to each of those questions as to which remedy, if any, because the Commission is not obliged to give any remedy at all.

PN241

THE VICE PRESIDENT: Mr West, the final words in CH(2) are that "the remedy ordered", past tense, "is appropriate".

PN242

MR WEST: Yes. That is a curiosity.

PN243

THE VICE PRESIDENT: Well, I must admit when I had to apply it first instance I found it quite difficult.

PN244

MR WEST: It is a curiosity. Our respectful submission will be that means to be ordered, otherwise it makes the task of the Commission rather peculiar. It does not seem to be - it is contemplated in that - you - before you make the order you have got to go through all these gates because you have to choose, if you are going to make a remedy at all, whether it is reinstatement, whether it is - and if so whether it is reinstatement with back pay, or whether it is not reinstatement at all, it is a money order and you can only do that if you do it before you actually make the order. So that as a matter of logic it is badly expressed but that is what it must mean, in our respectful submission.

PN245

THE VICE PRESIDENT: Maybe it means that not only the remedy to be ordered but whether any remedy should be ordered as well.

PN246

MR WEST: There's no - yes, we submit - - -

PN247

THE VICE PRESIDENT: It is not really what it - not what it says.

PN248

MR WEST: No, it is like many aspects of this piece of legislation, they are not exactly icons of a draftsman's art. In order to make sense of it and to apply it the way we submit it is structured to be applied, the Commission plainly has a discretion as to whether it will make an order at all. It does not have to grant a remedy and if it does it then has a complete - it has an obligation, a thorough obligation, to consider in relation to each of the remedies whether they are appropriate and if they are not, the Commission moves on. It may then conclude, after considering the appropriateness of each of those remedies from that smorgasbord of remedies, none is appropriate, no order is made.

PN249

THE VICE PRESIDENT: It is further complicated by the - if one is talking about money, if the money is $1 or if it is a million dollars, it is going to make a big difference to viability and some of the other matters too.

PN250

MR WEST: Precisely. Your Honour is - and that is why, your Honour, one holds this Act and looks backwards and forwards as one works through the paragraphs. Otherwise the task which the Commission is set can't be performed properly. That is plainly what, in our respectful submission, the parliament had intended by saying it must not make an order under (1) unless it is satisfied having regard to all the circumstances of the matters which are identified and (e) matters which the Commission considers relevant.

PN251

It is because the Commission is required to have regard to all of the circumstances of the case that the Commission must take each of the individual applicants and treat him or her as a separate case and take each of them and consider whether in relation to each of them it is an order at all or whether, if it is an order, which kind it is, because each of those individuals will have made - have different circumstances applicable to them. It is plain that the Commissioner didn't do that either.

PN252

THE VICE PRESIDENT: He does deal with those five points in paragraph 199.

PN253

MR WEST: Yes, he lists them.

PN254

THE VICE PRESIDENT: The reference at the end of that to 170CH(7) is probably wrong.

PN255

MR WEST: Yes.

PN256

THE VICE PRESIDENT: It should be 170CH(2).

PN257

MR WEST: Yes. I don't want to be accused of applying too fine a tooth comb at this point, your Honour, but plainly, in our respectful submission, there is an arguable case that the Commission in relation to the orders has not satisfied and complied with the jurisdictional obligations which were imposed on him and rather there is powerful evidence from his own words that he has completely failed to address and misapplied those provisions. His order for reinstatement cannot stand, given his statement in 197, without anything else in this case. That order for - those orders for reinstatement cannot survive attack on the basis of 197 alone.

PN258

An express finding that there was no evidence - not just the evidence was inadequate or he was unsatisfied with aspects of it, that is a no evidence finding. Because there was no evidence about it then he is able to make the order. It is a complete non sequitur and it demonstrates that the Commissioner has misunderstood what he was doing under section 170CH on the question of remedy.

PN259

THE VICE PRESIDENT: Do you say there was evidence?

PN260

MR WEST: Yes, yes, the case was complete.

PN261

THE VICE PRESIDENT: So that there was evidence as to whether any of the dismissed employees' former positions was vacant or not?

PN262

MR WEST: Yes, yes. Our case is it wasn't challenged. It wasn't challenged. The mine general manager was the man whose evidence explained the business case for termination. He was cross-examined on his credit on the basis that he had made some arrogant and unflattering remarks about an employee who once worked at the mine and it was put to him that he wasn't a very nice fellow but he was not challenged on the business case. He was the man who made the decision. He said so. There were collateral attacks addressed to subalterns but never to the general and he was the man who had to be taken head-on on this question and admissions contrary to the company's interests secured if the business case wasn't going to be accepted. That was never done.

PN263

Now, that drives our submission that had the Commissioner properly addressed the earlier jurisdictional question, namely 170CG, as to whether there was harshness, unjustness or unreasonableness and whether he had taken the first step, namely was there a valid reason, the proper resolution of that question was: yes, there was, but not the way he found it.

PN264

THE VICE PRESIDENT: It is, of course, the valid reason for the termination of these specific employees.

PN265

MR WEST: Yes.

PN266

THE VICE PRESIDENT: Not just for that number of employees.

PN267

MR WEST: No, that is right. Now, he just - the Commissioner completely, with great respect to him, has misunderstood and misapplied the section. May I deal with that immediately. One gets the sense of this from about paragraph 113 onwards in the judgment which is in a section of the judgment headed: Conclusions. They commence at 101. Quite what the difference is between the conclusion and finding is never made clear. The Commissioner says in 113:

PN268

The issue relied on claims -

PN269

112 I will pick it up from:

PN270

Essentially the issue in this matter is that specific ...(reads)... or reasons relating to capacity or conduct.

PN271

He says:

PN272

This requires a consideration of an examination of whether or not in all the circumstances ...(reads)... as harsh, unjust or unreasonable.

PN273

With respect, it is not entirely clear what the Commissioner is saying there but there are a couple of indications that he is already on the wrong track. To start with his reference to "fair go all round" seems to be a question of whether, in his inquiry, looking back at what was done a fair go all round was given. Now, that is not what the statute requires. The fair go all round obligation is one which is imposed on the Commission itself. It is an object, in 170C(a)(ii), which the Commission must be faithful to in its arbitration of the proceedings. It is not an obligation on the employer when the employer was considering terminations, it has got nothing to do with it, but that is an error which appears in a number of places and it something that appears in a number of decisions of the Commission and, in our respectful submission, on the appropriate day we will be saying it is equally wrong. It seems to be understood.

PN274

There seems to be a view that the employer has a statutory obligation to afford a fair go all round, he does not. In the same way there seems to be a view, held by the Commissioner, that the provisions of 170C(g)(iii) are statutory requirements which must be met by the employer, they are not. It is a complete misconception of the operation of the statute.

PN275

THE VICE PRESIDENT: Well, C(g)(iii) poses the obligation on the Commission?

PN276

MR WEST: Yes, exactly, and so does C(a)(ii).

PN277

THE VICE PRESIDENT: Well, C(a)(ii) really is a statement of intention?

PN278

MR WEST: Of objects, yes, yes. Now, apart from that he then says:

PN279

Well, albeit that such were upon operational requirement imperatives.

PN280

He seems to be suggesting that, excepting for purposes of the argument, it was an operational requirement problem and the question of whether it offends the principals for selection for each applicant, one does not know what those principals for selection are, there's no statutory prescription of that. "To the extent that it such represents a valid reason." It has got nothing to do with it but this is a complete omelette, this paragraph, it has got nothing to do with the obligation that he is supposed to be addressing himself to. It get worse, in our respectful submission, 114:

PN281

Given the applicant's terminations were based on a claim of redundancy brought about by operational requirements -

PN282

To be fair to be him, what he seems to be saying there is, "well, the employer claimed that was so. Let us leave that open for the moment. He then says:

PN283

PN284

Under all the circumstances of such selection for redundancy was such capable of scrutiny revealing that this was as an end result of the application of an even-handed process for selection applied equally to all the employees by way of a fair selection process. To that extent could it be said the terminations do not offend the concept of a valid reason and are they also representative of a fair go all round to both the employer and the employee?

PN285

In our respectful submission, he is not following the path which the statute requires of him and he appears to be couching the question as being some sort of negative test. There is no such negative test. The question of valid reason is an objective consideration that the Commission must have regard to and the answer "yes" or "no" does not determine whether it is harsh, unjust or unreasonable. It seems to be now in the same level of discourse or plain of discourse about unfairness, contrary to what was decided back in Cosco's case when the Act was different, because the statutory amendments are such as to put in the same realm of discourse but the Parliament has been careful to say: well, in deciding this question of harshness and justice, etcetera, you must look at valid reason. Was there one?

PN286

Now, you would think, if the answer to that is "yes" there was, related to one of the other of the duo in A that that would be teller against unfairness, against unjustness. If there wasn't you might think: well, that might indicate unjustness but it does not mean there is. That is how it works, in our respectful submission, they are independent stellars or markers along the way to getting to your result.

PN287

THE VICE PRESIDENT: I think the Commission has said that in a number of appeals, none of them are determinative, they are matters that regard has to be had to.

PN288

MR WEST: No, I'm happy not to address further on that. Right, that is plainly the way it was meant to work, but what the Commission is doing here is mixing all of this up and applying some sort of test that does not exist in the statute. He says further, in 115:

PN289

Where the termination is not capable of attracting the description "harsh, unjust or unreasonable", which after all was the reason for the filing of the applications, the subject of the decision.

PN290

That seems to be some sort of independent question he is asking himself. He says:

PN291

According to the upside of that would be therefore that be terminations represented of a valid reason and ones which could be observed as providing a fair go all round and not of a harsh, unjust or unreasonable character.

PN292

Then at 118 he says this:

PN293

It seems to me that the company had the managerial right to reduce its work-force and a reliable operational requirements as outlined in its submissions to do so. However, of its own volition in selecting those to be made redundant from its Blair Athol mine, even though this was based on operational requirements, they chose to rely upon a selection method based upon PAs -

PN294

which is an abbreviation of Personal Assessment -

PN295

which in turn related upon an associated PER process to determine the persons within the workforce who should be selected for termination upon operational grants.

PN296

Now, he is there linking the manner of identification of those who were to stay and those who were to go. In relation to operational considerations and valid reason. What does he did with this? The answer to that is it comes together in his findings in 188. 188 is the general findings part of the judgments and there are a series of numbered lettered principal paragraphs. A, he finds the PER system was a system open to Pacific Coal to implement for purposes of improving and measuring performance, leading to a downsizing of its work-force under the operational requirements banner.

PN297

Now, that looks as though he is on the right track so far. Then he says:

PN298

I found the systems also capable of use as an associated tool -

PN299

this is B -

PN300

for the purpose of restructuring the business of its Blair Athol mine to select from its work-force those in individuals it wanted to retain. Subject to the proper application by and of those responsible for the administration of such PER system.

PN301

And refers to Kenefec, as to whether it is fair. Now, this is the start of the unravelling of his reasoning process and his findings. What it leads to is a finding that if it is not fair it is not valid, that seems to come from combination of A, B, C, on the next page:

PN302

I also find there's an order for the PER system to be fair, it needed to be properly understood by all, who would be subject to it.

PN303

People had to be trained. Then, he finds prejudice in D and then from E to H he elaborates on prejudice and gets into this black list, which is a complete beat-up, I will deal with that shortly. If we go over then to 188U, he makes this finding. He says - it is almost at the end of U, your Honour, I hesitate to give you a page reference in case it is not the same.

PN304

THE VICE PRESIDENT: No, because my pages won't be the same as yours. Is that paragraph - - -

PN305

MR WEST: 96 it is, I'm on 96.

PN306

THE VICE PRESIDENT: Yes.

PN307

MR WEST: He says:

PN308

Having made findings -

PN309

it follows an indented paragraph and a quote -

PN310

earlier in findings A and B of this paragraph that the process of the PAs and its supporting PER rating of employees was a method open to Pacific Coal -

PN311

for the selection of those that it wanted to make redundant upon operational grounds -

PN312

and could superficially appear to provide a valid reason for the termination of the applicants, when this, however, is set against whether the employer had reasonable grounds on the facts at the relevant time for terminating the employment of the applicants, I find that such has not been made out to my satisfaction.

PN313

That, what is informing that conclusion are his earlier findings that the system for selection was used was unfair. Unfair because the criteria, although not themselves the subject of any criticism, were applied retrospectively, in the sense that the employees didn't know what they were. Secondly, because of it he finds that this black list caused prejudice to be suffered to the employees. That meant that it was harsh, unconscionable - harsh, unreasonable and unjust, therefore there is no valid reason. He has come within coo-ee, he has almost flirted with finding that there was a valid reason, but he can't bring himself to say it because of his conclusion about unfairness, to put it in a general sense. That is completely and utterly incorrect, in our respectful submission.

PN314

If one follows this through, and it is not easy to do, but if one follows through this reasoning process in section 188, these findings. They are almost entirely involving notions of harshness and lack of fairness in the application of the system for selection and, in particular, the black list where we will be submitting in due course, it will be in a written argument very soon. This black list was nothing more or less than part of a ratings list which happened to be written in black ink on white paper. The fact that over time there were other different colours applied to ranking lists is neither here nor there. But for reasons which, with great respect, are inexplicable, the concept that there was a document which was referred to as a black list, took over the way in which this judgment has been put together. We propose to take all that to pieces, because it is, in our respectful submission, fundamentally flawed.

PN315

Our learned friend did a very good job convincing the Commissioner that there was something in it. We propose to demonstrate that there is nothing in it. Now, those findings, in our respectful submission, the way in which he has arrived at being unable to find that there was a valid reason demonstrates in a very powerful way that he has not addressed 170CG3 correctly. Now, if he has not done that, it is not surprising that the proceedings have miscarried because that is, in our respectful submission, what has happened here. He has not gone through the process. He has not addressed the individual arms of 170CG3, he has misdirected himself on the overriding question of fairness linking it to whether or not there is a valid reason and then examining what that reason was. He hasn't done that.

PN316

The impression one gets is that he would have found valid reason but for his findings of unfairness. Now, in our respectful submission, those matters would demonstrate that there is an arguable case on appeal which should make good the question of whether or not a stay should be granted, and whether one does or not is a question of some other questions. There is another matter which the Commissioner does not address in relation to his conclusion that there was either harshness or unfairness or whether, on the second of the jurisdictional requirements, any relief should be granted at all. That is what I might call the Darlstrom point, which is referred to in our written outline, essentially it is this.

PN317

Where the Commission is faced with a redundancy case, that is a case, a valid case for redundancy, not a question of a contrivance. Not that people have been made redundant when they weren't redundant, but a valid case for redundancy which is what we say this Commissioner should have found. Firstly, the question of whether or not reinstatement should go, should be answered in the negative. We will be submitting it is not appropriate to order reinstatement where there is a valid redundancy and we will be taking the Commission to authorities outside the Commission dealing with that as well, as to what amounts to an abuse of power, the jurisdiction being quite extensive. but be that as it may. If one is faced with a valid redundancy then no reinstatement.

PN318

If what you have got though is not a valid redundancy but a question of whether: well, not these people but other people should have gone, that these people weren't really redundant but others were. Then the Commission would expect that the case would have been run that these people should be reinstated and others should go. Now, that is the Darlstrom question. That there were others there who should properly have been terminated and these people should not have been. In the Darlstrom decision, to which we the Commission a reference, was a Full Bench judgment of this Commission and it is - I will just turn it up.

PN319

Yes, it is print T1001, a decision of Bolton J, Senior Deputy President Acton and Commissioner Simmons, 25 September 2000. This was a redundancy case, but one where there was an express finding that the selection was based on performance. An express finding to that effect. It was found that there was a valid reason for the termination and that that was it. In the judgment, paragraph 33, the Full Bench say this - and I should just indicate, your Honour, that in the findings of the Commissioner, there was a termination of a number of people for whom there was a valid reason based on operational requirements. It was a finding of no valid reason in Mr Darlstrom case because he was terminated for poor attendance record and the evidence of his absences had been condoned by the company. There was a selection process adopted by the company in relation to redundancy dismissals that was fair, just and reasonable that related to capacity.

PN320

The Commissioner rejected applications by the employees for reinstatement. In relation to Mr Darlstrom, the man for whom there was no valid reason, he made an order for payment of compensation. In paragraph 33 the Full Bench say this:

PN321

Having regard to all these matters we have reached the conclusion ...(reads)... in preference to those selected by the company.

PN322

Now, the Commissioner makes no reference to this case in his judgment, yet it was expressly drawn to his attention. For him to have made orders for reinstatement in circumstances that were before him here, in our respectful submission, one would expect to find a consideration of that matter. Were there others who should have gone rather than these people? Expressly is that so where he says there is no - he does not find valid reason for termination.

PN323

THE VICE PRESIDENT: Is it your submission that at first instance the applicants should have said: not me but X, Y and Z?

PN324

MR WEST: Yes, yes, they should have and they started, they started to run that case then backed off. That is what the evidence will demonstrate. So in our respectful submission, that is a matter which also goes to the question of whether there is an arguable case that the decision of the Commissioner would be, knowing that we would get leave to appeal, but that it would be - there is a likelihood it will be reversed on appeal. This is a case where it is trite to say that the proceedings were lengthy, so was the period of time between the conclusion of the evidence and the delivery of the judgment.

PN325

It is plain from the evidence which my learned friend tendered this morning that there are very significant amounts of money and it is, in our respectful submission, plain that from the judgment the Commissioner has not had regard or properly had regard to the obligations that he was required to address in order to arrive at either the conclusion as to harshness, unreasonableness or unjustness or as to the form of order which he should make, if any. We refer in our written argument to a decision in R v Hunt ex parte Shaun Investments and ex parte Academy Insurance. It wasn't my intention to weary your Honour with reading those cases, they are very - - -

PN326

THE VICE PRESIDENT: Well, I'm certainly aware of Shaun Investments.

PN327

MR WEST: Ex parte Academy Insurance simply just updates - - -

PN328

THE VICE PRESIDENT: Have you got copies of these decisions, Mr West?

PN329

MR WEST: Yes, they were - I understand, your Honour, they were included in the bundle the Commissioner sent.

PN330

THE VICE PRESIDENT: I don't think - we got a list and I think - - -

PN331

MR WEST: I understood - - -

PN332

THE VICE PRESIDENT: Yes, and then my associate rang Freehills and said we will need copies pursuant to the - - -

PN333

MR WEST: Were they not supplied?

PN334

THE VICE PRESIDENT: No. Well, I didn't see them.

PN335

MR WEST: Well, I'm embarrassed.

PN336

THE VICE PRESIDENT: Anyhow.

PN337

MR WEST: I apologise for that. I will find out what happened.

PN338

THE VICE PRESIDENT: There was something on - the listing note too said they were - - -

PN339

MR WEST: Can I - Academy Insurance is a - can I just take a moment to simply note the principle. Academy Insurance's decision of Dawson J in the High Court of Australia.

PN340

THE VICE PRESIDENT: Yes, thanks, I've got it now.

PN341

MR WEST: Thank you, your Honour. It is an application for prerogative relief which was successful for Mandanis. The application - I think the issue is this, that in a proceedings before the Commission in reasons which had been given by the President of this Commission, it became clear that the President had applied incorrect test or criterion - that is paragraph 30 on page 467 where his Honour says:

PN342

Where reasons are given for a decision it would be wrong to speculate upon matters ...(reads)... are of great importance in the public interest.

PN343

As a result prerogative relief went. Now, that is nothing more than an exempla in a very brief way but contrary to what has been put against us and my learned friend rather dragged his coat tails on this this morning and said: well, you know, we are really criticising there are not adequate reasons. That is not our case against Commissioner Hodder. Our case against Commissioner Hodder is that his reasons disclose he is wrong and in a very powerful and demonstrative way and that he, with respect to him, allowed his views about fairness to rather cloud, if not infect, his approach to the statute such that the result miscarries and he has not - he has not done what the statute required of him.

PN344

That, in our respectful submission, is what is plainly revealed in the section dealing with his findings in this judgment. Now, that being the case, there's no question. I mean, were we seeking prerogative review we would get that, but we are not at that stage, this is an appeal, and we submit these findings demonstrate error and we are right about that, then under the principles which the High Court has laid down in the Coal and Allied decision of 2000 then it will be for the Full Bench of this Commission to correct it itself. That task, I think I referred to earlier in this matter, was before your Honours for the first time.

PN345

It is a task, an appellant task, of no small dimension but it is one which has been tackled and to suggest, as the submissions - and if I may just lead with my chin - to suggest as is put against us that - it was mentioned again this morning - that one wouldn't even get leave to appeal, (1) is in irrelevance and (2) is wrong. One does not test that question by looking at bits of the evidence at the trial before the Commission. The question here is on the judgment does it demonstrate arguable case for appeal, arguable case for a correction. If the answer to that question is yes, the first question is met. The second question is: where does the balance of convenience lie?

PN346

Now, in that regard, I need only direct my attention to the question of the weekly payments. The other we have dealt with. It is plain from what was put in the evidentiary statement that was filed this morning that some people may be suffering financial hardship. The extent of that hardship is very difficult to gauge and that is not the issue. The Full Bench said in the Coal v Allied case on appeal from the stay order granted by Vice President Ross that in a case in the mining industry where you have people out of work and in receipt of no weekly income, then one could really take harshness, financial hardship as given.

PN347

Let us accept that that is so for the sake of the argument. The point does not become any strong by its repetition or by people giving evidence about the fact that some people might be getting treatment for this that or other condition. That evidence so weak and remote that - and it does not inform with the Commission's power, it is nothing to do with that. The question is, is the balance of convenience in our favour or is it in theirs. Now, it is going to be put against us, well, you have delayed. This matter should have been brought on before this so that the matter could be resolved. Well, there are two answers to that question. One is that we made it clear from the start that the people would be paid and if the stay were granted, whenever the stay was heard that would be that.

PN348

We didn't concede or give away or modify our rights in that regard. Secondly, it is not our fault that it took so long for the orders to be summoned. It may well be that both parties shoulder responsibility for not moving to get the order settled earlier than this but it is plain from the correspondence which you will have seen, your Honour, in Mr Longland's affidavit that the parties weren't getting very far very fast and there were ongoing disputes about what shouldn't be covered by the terms of the orders including of course the quite remarkable proposition which was even referred to this morning and this was agitated before Commissioner Hodder at the time that he made his final orders that these people should be reinstated not to the position that they occupied at the time of their termination but to some prior position that they had occupied.

PN349

Now, there's no jurisdiction to make such an order, statute does not give it, it is plain what the statute says but that issue was positively being agitated as late as September this year. Now, what then is an employer to do? The employer says: look, we will pay you, we don't require you to come to work, we will pay you. We are going to move to get a stay of these orders and we will do it. The orders aren't put in final form until 27 September and the orders require the employer to pay money, money which if paid may be very difficult to recover, quite apart from any legal question about it, practical question about it.

PN350

Now, in our respectful submission, ordinarily there would be a stay granted of the obligations to make those weekly payments. Some people are in receipt of weekly payments, not from the company but from - just from the company but from other employment and that is referred to in the statement we saw this morning, that those people have been writing saying: well, we want to know whether you want us to come to work so as to whether we give notice to our present employer, we ready, willing and able to work. We want to be but we will have to give notice.

PN351

The company said: don't bother. Now, in that regard, your Honour, the evidence is interesting and it is in our respectful submission rather supportive of the case that we make. Can I take you to this statement which Mr Barnes provided this morning? There are some attachments to that. The first attachment is not surprisingly attachment number 1, it is referred to in paragraph 6. Now, this is said to be a copy of a notice from the site noticeboard on 9 April 2001, attachment 1. There's a reference to what has happened. In the middle of the page it says:

PN352

Employees won't be required to return to work pending an appeal.

PN353

Then a statement about the mine being productive. Shortly afterwards in the same month, the next day, Mr Barnes receives a letter from a company in which the company's view is set out in which the say:

PN354

We also intend to ask the Commission to stay the application of the Commission's decision until the appeal is determined. Until the stay is in place, the company intends to comply with the Commission's decision to be paid at appropriate rates. This payment is made without prejudice to our rights of appeal.

PN355

11 April, Mr Barnes - another letter:

PN356

As previously communicated, be paid at the appropriate rate under the certified agreement from 9 April until a stay is granted. Weekly payments will commence once Blair Athol Coal receive the completed information.

PN357

Then asking to complete the attached form. Attachment number 4 is apparently also around about 9 April from Mr McGuiness, Mr Bates.

PN358

You advise that you have no work for me at the company, to be seeking a stay and appeal against the decision.

PN359

This is to Mr Bates rather from Mr McGuiness, so he demonstrates there that Mr McGuiness knows what is going on right from 9 April. 12 April, the next letter, attachment 5, the company makes good of Mr McGuiness:

PN360

We've also previously indicated that until a stay is granted, we will comply with the Commission's decision and hence pay you appropriately under the certified agreement. The company does not require you to attend the site.

PN361

Then there's a letter of 7 September in which Mr Barnes was told by the company that the matter was coming back before the Commission. Now, just taking that, the employees whose interests are being served by the statement would have this Commission believe that in fact they have known since 9 April that a stay was being sort and they were being paid until it was granted. There's no question therefore, in our respectful submission, that on ordinary principles where we are required to pay money which would be difficult to recover, we ought not have to pay it. The position should be preserved, the status quo preserved until the matter comes in before the Commission and the Commission will hear this appeal in mid December.

PN362

Now, may I go to just a couple of the authorities dealing with the question of balance of convenience and we have referred to them in our written outline. Toby v Container Terminals, Edwards v Telstra and then there's a reference there to the Coal v Allied decision of Vice President Ross. I can update that with the Full Commission judgment in that regard which I will take your Honour to. I will hand a copy up.

PN363

THE VICE PRESIDENT: Vice President Ross's stay does require weekly payments.

PN364

MR WEST: Yes, it does.

PN365

THE VICE PRESIDENT: Yes.

PN366

MR WEST: Let me face up to that immediately. We can spend so much time on this but there are other things that need to be done. If the Commission took the view that weekly payments or some such should be made, then so be it. Our principle submission is they should not under ordinary principles and those ordinary principles have not been revoked or varied by anything that has come from the Commission in the last few weeks, even though there is some debate within the Commission about ordinary stay application - ordinary stay principle should apply in reinstatement cases.

PN367

Where large amount of money are involved, one would ordinarily expect that those principles would apply. That might be thought to take care of the backpay issue, but ordinarily also there's no authority to suggest that ordinary principles should not apply where people are required to pay money. In the Hunter Valley case the company said to the Commission: look, if we are going to be required to pay this money there should be a certification. That is, that the employee certify what they are, in fact, ..... from other sources, including all sources and account should be taken of that and the balance paid and they should be required to undertake to repay those moneys to the company in the event that the appeal is successful.

PN368

Now, I would have to say to the Commission that in here that would be an available avenue to follow, and one could not say that that would not be appropriate. That would take care of circumstances of harshness and would also meet the fairness with which would be required that the company be treated even handedly and that the employees face up to the fact that they will have to repay the money in the event that the company is successful in the appeal. Now, I have to say that in the Hunter Valley case we indicated to the Full Bench there that if there were special circumstances of hardship, for example, then that would be looked at.

PN369

Now, that is a matter which the Commission might care to say something about, but generally that is our position and I want to say that now so that, one, the Commission's time is not wasted and at the same time some recognition is given to what might be a problem in some quarters. Does your Honour have a copy of the Hunter Valley stay orders as was finally determined?

PN370

THE VICE PRESIDENT: Yes, I think I do. There are three separate orders, I think?

PN371

MR WEST: Yes, that is so.

PN372

THE VICE PRESIDENT: Yes, I have got those and I have got the Full Bench's decision and Vice President Ross' decision.

PN373

MR WEST: Well, then I don't think I can further furnish your Honour - - -

PN374

THE VICE PRESIDENT: No.

PN375

MR WEST: Your Honour, they are the submissions we wish to put and subject to anything that your Honour wishes to ask me, I would not wish to say any more on the matter. I have dealt with some of the issues I understand may be coming merely to indicate that I don't want to waste the Commission's time about all that either. There is much beating the air might go on, but it is not very productive. The real question here is: are there arguable grounds of appeal? We submit the answer to that question is "Yes" and in those circumstances, where does the balance of convenience lie? We have dealt with the question of the backpay. It is only a question of the weekly payments, what is the appropriate mechanism for that? We have indicated that our principle submission is it should be stayed. If you are against us on that then the mechanism used in Hunter Valley or something like it would be an appropriate way to go, in our respectful submission.

PN376

THE VICE PRESIDENT: Thanks, Mr West. Mr Docking?

PN377

MR DOCKING: Thank you, your Honour. The Full Bench in the Hunter Valley 1 case so far as the appeal against the stay is concerned made it clear that one does not adopt necessarily generalisations and one needs to look at the particular circumstances of the case. So far as resisting the stay application is concerned the successful employees for the Blair Athol matter are even in a stronger position than the Hunter Valley 1 case. Your Honour, I take it from Mr West's oral and written submissions, there is no serious dispute that Commissioner Hodder made the reinstatement and continuity orders in his decision internally.

PN378

I think, Mr West, used integrally, as an expression, on 9 April 2001. Can I hand up to your Honour the bundle of cases in the Part A list of authorities of the employees. I want to take your Honour to how the authorities establish the employer has been in a continuous breach and therefore a prima facie contempt of the Commission since 9 April 2001. By reference to paragraph 4 of the employees outline, which I propose only to highlight parts rather than reading it, your Honour. Obviously I adopt the outline in its entirety.

PN379

THE VICE PRESIDENT: Yes, I have read it.

PN380

MR DOCKING: Your Honour, will see there is a reference to the Full Bench of the Industrial Commission of New South Wales in-court session as it then was, Retail Traders Association of New South Wales and SDA (1990) 36IR-38. That judgment should be the first in the bundle just handed to your Honour. In my submission, the Full Bench makes it clear that the term "reinstatement" should be construed in Commissioner Hodder's 9 April 2001 order in its ordinary industrial sense. By going to that part headed: Conclusions on page 46, your Honour, will be able to see that the judgment was delivered by Vice President Karl with which the other two members of the Bench agreed. Page 46, just over halfway down, it was said as follows:

PN381

My conclusion in this regard is based on my view of what is encompassed within the term "reinstatement" in an industrial sense. I consider that the term "essentially" and "fundamentally" requires that the employment relationship formally existing between the employer and the employee can, as a matter of reality, and not in some notional fictional way be re-established.

PN382

Your Honour, what the employer has done for Blair Athol unilaterally is used a notional fictional way of purporting to re-establish the relationship as they were directed to by the orders. There is then set out in the last two lines on 46 and 47, authority going back some 73 years in Sheridan v Central District Ambulance Committee (1928) AR NSW 108. The conclusion set out by the learned president in that authority appears just over one third of the way down in the quote. It has made it clear that the defendants had disobeyed the order of the Commission. Piper had not been reinstated in his old or a similar position.

PN383

I adopt, without reading that quote, which continues relevantly on to the top of page 48. It makes it clear in the fourth line at 48:

PN384

There has to be a practical reinstatement, a real redress, a taking back in to employment of the employee who had been improperly disrated or dismissed.

PN385

Vice President Karl also referred to English authority from the bottom of page 48 through to 49, which confirms that reinstatement must be given its ordinary meaning and this has not occurred for Blair Athol. I then go to the next judgment in the bundle, that of Maidment J in New South Wales Public Medical Office Association, 11 June 1993. The order in that matter is conveniently set out on page 2, not quite halfway down the page. It is made clear the facts bear a striking resemblance to what Blair Athol has done in this case, at the bottom of page 2 makes it clear that payments of money were made. At the top of page 5:

PN386

The employer's defence was they contended that the consequence of the payment of the moneys and the acceptance of those moneys meant that it had complied with the order.

PN387

PN388

It was pointed out that was a matter in dispute. These are enforcement proceedings. Relevantly, Maidment J concluded against the employer and found the offence proven, in other words, a breach of the reinstatement orders on page 10, over halfway down the page, Vice President Karl's judgment is set out with approval. Reference is made in the last line on page 10 to Sheridan's case. There then appears over on page 11 in the first full paragraph the following:

PN389

I am of the view, consistent with these authorities, that neither the payment of moneys to Dr Kascolopolos, nor the proffering to him at work in the Langden sentence amounted either individually or in combination to compliance with the order of Sweeney J.

PN390

Your Honour, and that is the submission that is made in this case that the payment of the money has not constituted compliance with the orders for reinstatement and continuity of Commissioner Hodder made on 9 April 2001. Your Honour will see reference is made to another Full Bench of the Industrial Relations Commission in Nutshack Franchise Proprietary Limited in the outline, paragraph 13, page 6 of the outline. Mr Barnes, in paragraph 54, has set out where the employer, through Mr Longland, who is absent apparently today, but before Commissioner Hodder expressly challenged the employ. He is to go to the Federal Court and enforce the orders.

PN391

Now, in Nutshack, the criticism was that the successful party was being virtually challenged to engage in further litigation and that was one of the criticisms the Full Bench made of the party making that submission. The Blair Athol employees are even in a stronger position because the employer is put on the record before this Commission expressly that you should go, in effect, engage in further litigation, cost and expense to enforce the orders.

PN392

Then developed in the outline is the submission that the employer so far as what I have identified in the submissions and Mr Barnes refers to in his statement as the seven employees in the first group, the Commission should decline to determine even a partial conditional stay. In other words, they should be reinstated in the mean time consistent with the existing orders because the employer is also estopped. What should appear in your Honour's bundle as the third case, I apologise, I didn't track down the primary source but used instead an extract from another judgment. There is a heading, your Honour, there should be on the second page: Estoppel in the next case which is in the bundle.

PN393

THE VICE PRESIDENT: Sorry - I'm just not with you. In your written submissions?

PN394

MR DOCKING: There should be - I'm sorry, your Honour, I'm now returning to the bundle of authorities.

PN395

THE VICE PRESIDENT: Yes, the next case is - - -

PN396

MR DOCKING: On the second page there is a heading: Estoppel.

PN397

THE VICE PRESIDENT: Yes.

PN398

MR DOCKING: What I adopt is the Full Bench of the Industrial Relation Commission of New South Wales in-court session reasoning and finding in the case of Payne v Howison 26 September 1997. Conveniently there is then set out what could be called: Estoppel by Conduct, or sometimes: Assumption Estoppel Principles on the next unnumbered page, and what I rely upon without reading is, it is conveniently summarised in principle 2, 3, 4 and 7. What the applicants rely upon is whether it be called defensively or aggressively, the notion of this employer cannot be permitted to have an unconscionable or unconscientious departure from the subject matter of an assumption which has been adopted by the employees.

PN399

What I mean, your Honour, when one goes to paragraphs 12 and 14 of the statement of Mr Barnes it can be seen at paragraph 12 at page 4 of Mr Barnes makes it clear that respondents have used their wage payments to settle outstanding debts that have incurred over the last 3 years. Paragraph 13 then sets out how I think it is, at least, 9 of the successful employees halted their position to the detriment by spending money and the like on anything from outstanding dental work to wives to buying motor vehicles. It is undisputed for the purposes of the stay, paragraph 14, none of the respondents would have entered in to these arrangements, whether it be settling outstanding debts, or buying a new motor vehicle or spending money on dental work if they had of been told that the employer would call for the money to be paid back 5 months after payments were commenced.

PN400

Your Honour will be able to see from the correspondence sent by Mr Bates, there was nothing polite concerning even a recognition by the employer of a possibility that the stay might be refused. The letters that Mr West has already taken the Commission to in his ordinary and usual way, Mr Bates, has just in a black and white way said a stay will be granted. Your Honour will be able to see by going to attachment 6 which is the letter, 7 September 2001, and one can't help but suspect this letter arose after pointing out in the Hunter Valley 1 stay proceeding that the employees of Blair Athol had been paid money without a requirement to return to work. It was part of the evidence in proceedings before his Honour, Vice President Ross, in August 2001.

PN401

It is no coincidence, I would have thought, that this letter then is sent 7 September 2001, belatedly alleging your Honour will see in the second last paragraph on the first page. It talks about: they will seek a stay order and then in the very last paragraph on the first page the sentence, being the second, states:

PN402

In the event that the Appeal Bench overturns this decision the company will require that all of these moneys be refunded by you.

PN403

Now, the employees apprehend it is now suggested by the employer that even though the employees say that the employer says have been in employment relationship for the last 6 months or so that the employer intends to recover those payments. The employees, at all stages, have been ready, willing and able to return to work, but it is the employer who has said unilaterally: we will pay you without you turning up at the mine to perform any work.

PN404

THE VICE PRESIDENT: How does that impact though on the stay application, Mr Docking, in your submission?

PN405

MR DOCKING: Your Honour, it is part of the unconscientious behaviour of the employer, for example, to belatedly suggest that it is going to seek recovery of money which if the proper employment relationship had of been honoured by the employer, the employees accept they would have doing a fair day's work for a fair day's pay. In other words, there would be no issue of belatedly suggesting that we now recover, as the employer, what has been paid to you for the last 6 months. They would have worked and been paid accordingly.

PN406

THE VICE PRESIDENT: If I made a stay order it wouldn't affect the payments that have been made up to now, would it?

PN407

MR DOCKING: Your Honour, part of what is put forward as the conditional stay orders is that your Honour should expressly - - -

PN408

THE VICE PRESIDENT: Yes.

PN409

MR DOCKING: - - - make a condition of any conditional stay as one of the alternatives that any money - - -

PN410

THE VICE PRESIDENT: Yes, I follow that one, yes.

PN411

MR DOCKING: - - - not be recoverable or be repaid and that notion has been taken from Peterson J in the case of Paris which will appear later in the bundle.

PN412

THE VICE PRESIDENT: Yes, I saw that, but leaving that aside, may be I should have made it clearer that all it would mean is that the payment stopped between now and the determination of the appeal or further order, if I was persuaded, I was just sounding you out on what - - -

PN413

MR DOCKING: Yes, your Honour, but as is made clear there is the second group of nine employees who understandably, given the uncertainty, are saying: well, we don't want to walk away from our jobs we have.

PN414

THE VICE PRESIDENT: Yes.

PN415

MR DOCKING: They also seek because there's two alternatives put forward for them, but as one of the alternatives is that your Honour makes it clear because they are happy to be paid in the mean time without returning to work, the group of nine employees, but that there be a condition that they not have to repay the moneys, just like Peterson J formulated as an appropriate stay condition.

PN416

THE VICE PRESIDENT: Those nine are being their full wages or salary by Blair Athol, are they? The ones that are in employment?

PN417

MR DOCKING: I understand that is right but, at least, two of the employees are working with the local counsel who receive, for argument sake, about $400 gross which is undeniably a vast different - - -

PN418

THE VICE PRESIDENT: Yes.

PN419

MR DOCKING: - - - or underpayment compared to the Blair Athol payment.

PN420

THE VICE PRESIDENT: Yes. No, I accept that, yes, yes.

PN421

MR DOCKING: Your Honour, if I can then turn to - I just note on the top of page 10, paragraph 19, it is suggested by Mr West that the ordinary principles are in effect that there should be a stay. With great respect, that is incorrect as a matter of principle set out in paragraph 19 are but two Full Bench decisions upholding where members of the Commission, obviously being Presidential members, had heard stays and in one instance had declined the stay where an employee was reinstated and on the other occasion had declined a stay where there was an order to pay compensation of lieu of reinstatement.

PN422

I would have thought it was clear from the recent Full Bench in Coal v Allied that it is wrong to state such a generalisation of the type that there are ordinary principles that apply. I'm familiar with the argument because I did appear in the appeal proper and that was one of the arguments which seemed at least implicitly to have been accepted by the Full Bench that one looks at the individual circumstances of each case and one does not make sweeping generalisations concerning what should happen in a stay. If I can then pick up the point that appears under the heading on page 10, "Commissioner's adverse findings against employee".

PN423

This is where it is submitted that these findings and conclusions of the Commissioner are fatal to any stay application and it is submitted that the adverse findings as to the credit and conduct of the employer witnesses and the corporate employer taken singularly for in combination means that no independent Tribunal acting reasonably could have found other than each termination was harsh, unjust or unreasonable and that the only appropriate remedy was reinstatement without loss. No serious attack can be brought against the consequent findings in favour of the employees.

PN424

The last sentence on the top of page 11 is really adopted from another Full Bench set out later in the submissions and that is B. and P. Kellely Constructions Proprietary Limited and Marchetta and others. The reference appears in the outline at the bottom of page 14 on to the top of page 15. I will just jump before coming back for a moment, your Honour will see on the top of page 15 that the Bench in the - emphasised to underline part said:

PN425

The reason for the terminations of the union activities of the employees were reasonably open to him. If such findings were properly available to the Commissioner, no serious attack could be brought against the Commissioner's consequent finding that the terminations were harsh, unjust or unreasonable.

PN426

THE VICE PRESIDENT: Is it your submission here that there is no arguable case?

PN427

MR DOCKING: Your Honour, when one properly reads fairly Commissioner Hodder's decisions, I use that health and safety analogy, even if one could argue there is an error, given the multiple or layer upon layer of findings in favour of the employees it fails to safety every time. There is always not just one but most usually multiple alternative findings found by Commissioner Hodder which means the decision is not properly one that can be said to be arguable that there is error.

PN428

THE VICE PRESIDENT: That is the heading your are raising this under on the basis of the two headings of arguable case and the balance of convenience.

PN429

MR DOCKING: I'm also ultimately relying upon this as the prejudice and the hardship suffered by people like Mr Barnes, Mr Finger, who are here today as well as the other employees. Obviously they cannot all be present due to the instant issue and some are working, they are suffering ongoing prejudice, hardship, embarrassment and the like from being put on Rio Tinto's black list and Mr Bates going public and saying that these employees were the worst performers. It has impacted upon them in getting work as Mr Barnes points out in Claremont, the local town.

PN430

THE VICE PRESIDENT: This is balance of convenience then, is it?

PN431

MR DOCKING: Yes, your Honour, and we rely upon the black list of both.

PN432

THE VICE PRESIDENT: Yes.

PN433

MR DOCKING: No arguable case and balance of convenience. When your Honour looks at fairly adjusting the rights of the parties. Now, Mr West has said apparently this is a beater concerning the black list. May I hand to your Honour a copy of what is the original exhibit PC56. If your Honour's - - -

PN434

MR WEST: I object to this, your Honour.

PN435

MR DOCKING: - - - copy is in colour.

PN436

THE VICE PRESIDENT: Well, just a moment. This is an exhibit before Commissioner Hodder?

PN437

MR WEST: Yes, it is, your Honour.

PN438

MR DOCKING: It is.

PN439

THE VICE PRESIDENT: Yes.

PN440

MR WEST: I object to it here, your Honour. Your Honour can't on a stay application engage in a piecemeal consideration of all of the pieces of evidence and how they interrelate and how they may have related at trial for the purposes of making a decision as to whether or not on balance of convenience or unarguable case, a stay should be granted. This is an attempt to give prominence out of context and for a different purpose to pieces of evidence that came out in the course of the trial. In our respectful submission, there's no basis for admitting this. It is a completely novel and, in our respectful submission, unhelpful way of approaching the question either as to whether there's arguable case or not.

PN441

The Commissioner's judgment is there. That is what we are working on. We say he is wrong, he has got to the wrong result because he has misdirected himself on the law. It does not matter what his fact findings are. If he applied the wrong test, he got the wrong test and the fact that it might be said: well, there are 48 reasons why he didn't like Mr X or Y, and the answer to that is: so what. That is not the task of an appeal bench of a single member when it is only on a question of stay or not.

PN442

My learned friend can't possibly use this as just a piece of evidence to deal with a proposition that on the face of this judgment, there are misdirections on the law which is what I have sought to do, explain how the appeal comes together. It wouldn't matter what the Commissioner said about this. He might be convinced this is true. Well, that is interesting but it does not answer the question whether or not there's an arguable case for correction given the way he made his findings. That is what we directed our attention to, in our respectful submission.

PN443

THE VICE PRESIDENT: Thanks. Mr Docking, I will accept the tender of this document. I know what Mr West says but I don't wish to inhibit you in the way that you present your case and what weight is given to it of course, will be a matter for me in deciding the matter.

PN444

MR DOCKING: Yes, I can understand that, your Honour, but it is part of the evidence in the first instance.

PN445

THE VICE PRESIDENT: Yes, I appreciate that and have the appeal books not been taken away, I would have it in my office at the moment.

PN446

MR DOCKING: Something, your Honour, that I will get some inquiries made is to ensure that all members of the Full Bench have these exhibits in colour rather than just black and white because they are rather telling when one sees them in colour. Can I take - - -

PN447

THE VICE PRESIDENT: Yes, all right. Well, I will leave that to you to do for the appeal proper but, yes, what is the point on this exhibit, PC56?

PN448

MR DOCKING: Your Honour, there's some handwritten numbers, take page 5 as an example.

PN449

THE VICE PRESIDENT: Yes.

PN450

MR DOCKING: Your Honour will see that it should be colour coded the bottom right-hand corner is "black list still to go".

PN451

THE VICE PRESIDENT: Yes.

PN452

MR DOCKING: Your Honour will see that there is not only - there's the colour code, blue was the evidence was a decision had been made to retain them; red in effect are unsure and the evidence was black list to go, a decision had been made that they would be retrenched. Now, your Honour will see that it can't be explained innocuously away by: it is just an unfortunate colour coding, just like the Commissioner found, there's also the three words after, "black list still to go".

PN453

THE VICE PRESIDENT: Meaning, in your submission?

PN454

MR DOCKING: Meaning as Commissioner Hodder found and it is not challengeable on an appeal that they had been selectively retrenched or targeted.

PN455

THE VICE PRESIDENT: To go in the sense of being retrenched?

PN456

MR DOCKING: It was manipulated as the Commissioner properly found to ensure that they were still to go, that is they were to be retrenched.

PN457

THE VICE PRESIDENT: All right.

PN458

MR DOCKING: I will go to some of the passages of Commissioner Hodder's decision which deal with this matter. Hopefully a reasonable catalogue of them appears in paragraph 22 of the employee's outline. Can I take your Honour to a number of them, paragraphs 156 to 159 of Commissioner Hodder's decision.

PN459

THE VICE PRESIDENT: Yes.

PN460

MR DOCKING: 156 refers to some of the expert evidence called by the employees and Ms Knox and 157 Commissioner Hodder said this:

PN461

It is clear, based upon the evidence, that knowledge of the existence of the black ...(reads)... union became aware of this.

PN462

It then says in paragraph 158:

PN463

It is also fair to say not only were the applicants and their union not told of the existence ...(reads)... Pacific Coal not to do so.

PN464

The Commission then at 159 adopts part of the submissions which is clear by the last sentence where it was said:

PN465

...is an appropriate view to be placed upon this.

PN466

Your Honour, if I can pause here, what happened was there was at least two summonses for production about which the employer purported to comply. When his Honour - I should say the Commissioner - found they were not produced until it became untenable for Pacific Coal not to do so, what occurred is Miss Hock, who could be called a whistleblower, gave evidence in the proceedings and what she did was produce what became marked at exhibit CFMEU88. This is in July 1999. There was leave in effect given to call Miss Hock as additional evidence when that evidence became known to the applicants.

PN467

Your Honour, I only have the one copy with me of CFMEU88 but it was the first one that had two of the employees on it on the left hand side black list still to go, Mr Appleton and Mr Rogers and another employee, J. Duncan. Up until that stage none of these had been produced despite compulsion of law requiring them to be produced. That is the sense in which Commissioner Hodder found they were not produced until it became untenable. It can be seen that exhibit PC56 got tendered 7 September 1999. Obviously once it was proven that something called the black list still to go existed there was then further argument and the employees and their representatives ensured that all the black list still to go which had survived and had not been destroyed were produced.

PN468

Might I note that there seems to be a gap in black list still to go. There's exhibit CFMEU88 is the one for Mr Rogers and Mr Appelton which Miss Hock had worked on for Mr Yates. It was dated about January of the relevant year but the employer couldn't find any others which existed at that time. In any event, if I can then go to some of the findings of Commissioner Hodder concerning the black list still to go. These are found in paragraph 188. I can take your Honour to (i) of 188 it is found:

PN469

From an assessment of all the evidence I find that the impact of the existence ...(reads)... in respect of the black list was maintained.

PN470

It then goes on and confirms some more detail about the black list and then makes the express finding in the last few lines of 188(i) that the process was not fair and that each of the applications for termination was unjust and unreasonable. If your Honour also looks at (j), part of what appears in (j) as the first three lines, at least on my copy, I'm not sure if the pagination is different.

PN471

THE VICE PRESIDENT: I have got (j), don't worry.

PN472

MR DOCKING: It says:

PN473

I find the applicants by way of their early identification upon the black list which at some ...(reads)... commencement of the process.

PN474

If I can pause there, when I deal with Darlstrom, paragraph I think it is 33 which Mr West read from, dealt with factually circumstances the complete opposite to Blair Athol's. There was a positive finding in Darlstrom that people were not targeted. Here the positive finding available on the evidence, indeed compellingly so on the evidence, was that all 16 were targeted, were selected and the process was accordingly manipulated.

PN475

THE VICE PRESIDENT: Did the black list contain the names of all 16?

PN476

MR DOCKING: What occurred was - well, Mr West has said, "No". What occurred is that the reason why there's two employees, Mr McGuiness and Mr Walsh, were in what was called the maintenance MRU. The other 14 who were in the production MRU either in overburden mine surfaces or pit operation were ultimately all on the employer's black list still to go. Why the position is unclear for the maintenance MRU is that the employer, despite the summoned reduction, never produced the lists which existed for the maintenance MRU. Interestingly, the person in charge of the maintenance MRU was one maintenance manager, J. Reardon, a different Mr Reardon to the former member of this Commission obviously.

PN477

THE VICE PRESIDENT: I assumed that was the case.

PN478

MR DOCKING: It was his notebooks which conveniently, and I will do this out of order to explain the maintenance MRU position, are referred to in the decision at paragraph 152. These are the notebooks which were subject to examination by a document examiner and paragraph 152 rejected the employer's contention that it was in effect just some sort of innocent overriding. To explain why that was obviously so, part of paragraph 152 has an examination of where - at least on my page it - if your Honour goes - there's some bold and the second bold entry is part of 152 paragraph number has in italics "per ratings" and then there's bold as the third square point:

PN479

Rating lists are very likely to achieve 7 or 8, that is meet expectations.

PN480

Now, that is what one could read. However, what the document examiner proved was that what appeared under it was really the complete opposite and this is a matter where I accept Mr Reardon when he was recalled claimed his privilege against self-incrimination. I don't make any submission adverse to him claiming privilege against self-incrimination, he is entitled to, but the records are damning enough against the employer by themselves. What actually was under the writing is the first bold in paragraph 152:

PN481

Black list are unlikely to achieve 7 or 8, that is meet expectations.

PN482

Your Honour can see the complete opposite meaning between very likely and unlikely, let alone the hiding of the reference to "black list". The submission made, which it seems the Commissioner accepted, was that Mr Walsh and McGuiness in the maintenance MRU were also black listed but the employer could never produce those lists and there was never any satisfactory explanation concerning those lists, perhaps that is because when Mr Reardon was recalled as he is entitled to, he claimed privilege against self incrimination. He was represented by a separate barrister and used his legal rights to claim the fifth.

PN483

So it was a little bit difficult for the applicants to explore any further, where were the missing maintenance MRU black list which are referred to in his notebooks and as accepted by the Commissioner. If I can return to the findings of the Commissioner in 188M, your Honour will see that within 188M, this is where ten of the employees ended up in mine services in what the Commissioner found was an area where Mr Scott Brown treated the applicants like blood sport. It was found that this was known as Kim Brown's Snake Pit and your Honour will see entirely consistently as the last part of the 188M that is consistently with the High Court in Burn v Frew, the Commissioner found further:

PN484

The ratings could only be viewed as susceptible to inaccuracy and prejudice and therefore cumulatively improper, thus ensuring that such applicants were selected for termination. Such an outcome in my view is not one representative of a fair go all round and is of a harsh, unjust, unreasonable nature to the extent that such overlap, C. Burn.

PN485

Might I say the Commissioner's impeccably applied the High Court on what refers in at least one of the judgments to the injunction of harsh, unjust or unreasonable and what those criteria mean. Also, if your Honour looks at 188Q, and there's a series of dot points. This is the fourth dot point where the Commissioner found:

PN486

In this regard, I find that the PER system at best when the application of it is considered reveals a flawed ...(reads)... and that this represents an unjust and unreasonable termination in the case of each applicant.

PN487

Again, entirely consistent with the statutory criteria as explained by the High Court in Burn v Frew. In terms of 170CG(e), your Honour will find as part of Q - and there's a series of dot points which I calculate as being the tenth of the second last one in Q.

PN488

THE VICE PRESIDENT: Insofar?

PN489

MR DOCKING: Yes.

PN490

THE VICE PRESIDENT: Yes.

PN491

MR DOCKING: As subsection 170CG(3) is concerned as to any other matters that the Commission considers relevant and having regard to this, I find that there was a conspiracy in the form of knowledge not revealed applied by Pacific Coal attached to the use of coloured lists to distinguish those employees that it intended to keep (the blue list) and those it intended to terminate (the black list). If I can pause there, it was the employer in its written submissions started talking in extravagant terms about there being a conspiracy in the applicant's reply, it adopted that expression of: if you want to talk about a conspiracy, well, the evidence here normally when one looks at Ahern, the High Court talks about you have got to infer that a conspiracy takes place from other Acts. He said:

PN492

We actually had direct evidence by admissions and documentary evidence of the conspiracy being implemented.

PN493

So can I make it clear it was the employer who started injecting in their written submissions the expression "conspiracy". Then finally before leaving the black list still to go in terms of the decision, it is 188U and there's a series of discussions about whether there was a valid reason in 188U, at least on my copy impeccably the Commissioner pointed out whether there was a valid reason for termination is not determinative but merely one factor. That is the first few lines of 188U.

PN494

THE VICE PRESIDENT: Yes.

PN495

MR DOCKING: There's then quite consistently with whether there's a valid reason reference with approval to part of the employee's submissions and I will come to how at least on a stay it is not arguable, a number of Full Benches have construed what a "fair go all round" means and part of that is set out in the quote under the first arrow point being a Full Bench in Australian Meat Holdings Proprietary Limited. The Commissioner applied the Full Bench, you can't come along on a stay and say: we want to argue before another Full Bench, just like Vice President Ross found on a point to be raised in the Hunter Valley matters. For present purposes, your Honour would really be bound by the Full Bench as dealing with what "fair go all round" means.

PN496

THE VICE PRESIDENT: There are quite a few Full Benches that have had something to say about it.

PN497

MR DOCKING: Well, when I come to Dowstran, the very case the employer raises against the employees, it also applied what a fair go all round and applied how it just involves basic notions of fairness, the very thing that Commissioner Hodder is criticised about, appears in Dowstran. In terms of - your Honour will be able to read the analysis quite correctly in 188U in its entirety but if I can go the last two arrow points which are the last two arrow points before paragraph 189. Commissioner Hodder said:

PN498

I find that the alleged facts are so inaccurate that reliance by Pacific Coal upon such could only be perceived as creating a result representative of an unjust, an unreasonable outcome for the applicants. This is revealed when consideration of the bastardised manner under which the applicants were rated and ranked as opposed to others in the work force is revealed in my earlier findings.

PN499

Your Honour, if I could pause there. The expression "bastardise" is the Commissioner's, it reflects one would say ordinary industrial parlance concerning the manipulation and bias that existed in this system but importantly and additionally, the Commissioner then goes on to find:

PN500

The extent to this is that such ratings and ultimate rankings were so inaccurate that the decision to terminate each of the applicants could never attract as a defence that such was as sound defensible or well founded decision and to that extent consistent with my earlier findings, I find the termination of employment of each of the applicants to have been capricious, spiteful and prejudiced.

PN501

Now, your Honour, on a proper reading of the Commissioner's decision, he has fully understood things like section 170CG(3)(a) which has operational requirements, capacity or conduct. It is well understood, and I will develop this later, that one being an employer cannot just say: I had a valid operational requirement, ignore whether I had for each individual employee a valid conduct or capacity reason or both. I'm not sure how many Full Benches this employer requires for that to be confirmed. I'm ultimately going to come to even a more recent one, Lockwood Security, where his Honour, the President presiding over the Full Bench, is yet again confirmed under the present unfair termination provisions cases which under the current legislation perhaps start with the Full Bench in Windsor Smith.

PN502

As I understand it, that applied consistently in redundancy cases that a valid operational requirement by itself is not enough and here, quite rightly, Commissioner Hodder has found regardless of what your operational requirement may have been, the whole process was capricious, spiteful and prejudice that it could never be a valid reason. It is entirely consistent with 170CG(3)(a), the statutory criteria of harsh, unjust or unreasonable and according both the employer/employee a fair go all round. If I can then just go quickly to highlight parts of evidence in the proceedings below which are referred to in paragraph 23 of the outline. There's a bundle which, hopefully, was filed yesterday of some of the evidence.

PN503

THE VICE PRESIDENT: Yes, it came with the file.

PN504

MR DOCKING: And should have an index.

PN505

THE VICE PRESIDENT: This is materials of the respondents on the stay?

PN506

MR DOCKING: Yes, your Honour. It can been seen from supervisor Campbell's evidence on transcript 3071. He provided the basis for properly submitting there was a black list still to go in existence in early 1997. The first performance effectiveness review, PER, also some times the language was PA, or performance appraisal, was suppose to cover the period 1 January 1997 to 30 June 1997. The second PER was then 1 July 1997 until 31 December 1997. The third PER was the first 6 months of 1998, but what supervisor Campbell admitted was the first black list existed in early 1997. The whole concept of PERs didn't develop until after the first black list already existed at Blair Athol. That much was accepted by Commissioner Hodder, which is apparent in the bundle. There's then - because he conveniently summarises the evidence at paragraphs 84 through to 86 of his decision are in the bundle.

PN507

There was also supervisor Gardiner admitted, quite separately from any PERs, there was a black list compiled before the first PER was ever done. This was the black list that was done by a gut reaction of supervisors sitting around and Mr Malcolm Keig, then superintendent of Blair Athol, one could put as a foot note: later manager of Mount Thorley, another recent decision of this Commission, was the one who recorded the gut list, black list on a board. I note here, your Honour, they were never produced, although required to be produced under summons for production.

PN508

MR WEST: I object to this.

PN509

THE VICE PRESIDENT: To precisely what, Mr West?

PN510

MR WEST: I object, your Honour, to this attempt to paint the company's answer to a summons as being a failure to produce. There is another view about that, and it is that what we were asked to produce did not include this material ever. I just want to point that out. This black list needs to be exploded, and it will be in due course.

PN511

MR DOCKING: Yes, well, regrettably for the employer for present purposes on this stay the Commission found otherwise in terms of - they were only produced when it became untenable for the employer not to produce them.

PN512

THE VICE PRESIDENT: Yes, well, that is in the decision.

PN513

MR DOCKING: Yes.

PN514

THE VICE PRESIDENT: I must say I find it more useful to look at what is in the decision for the present purposes than other material but, as I say, I'm not trying to stop you presenting the case you want to but - - -

PN515

MR DOCKING: Well, I need to go because, for example, the next evidential material in the bundle is an extract from Janine Hock. The Commissioner expressly found that he accepted her evidence.

PN516

THE VICE PRESIDENT: All right. Well, that is in the transcript. I mean, that will be in the decision, I take it?

PN517

MR DOCKING: Yes, but - - -

PN518

THE VICE PRESIDENT: Yes.

PN519

MR DOCKING: - - - in terms of what the Commissioner found when one looks at the statement, she was the one for a couple of months was updating the black list with people like Mr Yates. It was understood that black list was meant they didn't have a job any more. She spoke to Superintendent Prebble, she asked about what - and this is late 1997, what would happen to the union chaps, Mr Barnes. Mr Prebble made it clear they will be gone.

PN520

THE VICE PRESIDENT: Mr West conceded in his submission that you done a pretty good job convincing Commissioner Hodder on the black list.

PN521

MR DOCKING: Well, one might would have thought - - -

PN522

THE VICE PRESIDENT: You might like to accept that.

PN523

MR DOCKING: Your Honour's experience surpasses mine. I don't know of any industrial case where one has finally been able to establish, not just in black and white but in colour, the black list and then to have, as the Commissioner found, the added words when it is about targeting people, the added words of "still to go". Keep in mind that a number of employees, ultimately being 10 in total, were in the mine services, two were already there, were put in mine services until the award simplification process had finished, until seniority was removed from the award and they were retrenched.

PN524

These are the people who the Commissioner found, like Mr Barnes, were given demeaning work of chipping weeds with a hoe, painting tyres with paint brushes, not given any chance to perform work, Mr Barnes, for example, was an open cut examiner and there would be shortages of open cut examiner and there would be shortages of open cut examiners and the employer said, "No, not going to use you. We are going to leave you chipping weeds in 40 degree heat and painting tyres". Now, that was all part of, as the Commissioner has found, how people were selected or targeted. They were put in mine services and ultimately retrenched.

PN525

Now, if I can then move to the next part of the outline on page 12, paragraph 24. This is where the Commissioner made some findings about people belonging to the CFMEU and what impact it had on the company's selections. If I can take your Honour to paragraphs 188K in the Commissioner's decision.

PN526

THE VICE PRESIDENT: Yes, I've got that.

PN527

MR DOCKING: This is but another example of how there's just multiple findings:

PN528

That there was no valid reasons. It was harsh, unjust or unreasonable and a fair go all round was not accorded to the employees.

PN529

This is another layer, and it can be found in 188K, the Commissioner expressly found that there was as - towards the end:

PN530

An unreasonable intent in terms of the applicant's ultimate terminations which, in turn, led to a conspiratorial allegiance among those responsible for the ratings given to each of the applicants throughout the application of the PER system.

PN531

This was in the context of who were CFMEU lodge members, which was relevantly all 16 of the applicants.

PN532

Your Honour will see also in 188(O) and this is where it was found by the Commissioner:

PN533

I find that based upon the above that the Blair Athol performance appraisal system was lacking in application by those responsible for appropriate concept of consultation between Pacific Coal and all of its employees. This, I find, created a lack of fairness in the sense that there was a bias which led to inconsistency in rating employees unless they fell in to a certain mould. That certain mould I am satisfied represented, among other things, being a non-CFMEU member and/or a signatory to an AWA. Another criteria to fit the mould required included the open acceptance of Blair Athol Mine by an employee of Pacific Coal agreeing to the use of contractors to the potential detriment of what the applicants perceived as being the job security of the permanent workforce.

PN534

The Commissioner also has a relevant finding as part of 188Q where he dealt with 170CG3A expressly. Your Honour will see, for example, as part of 188Q there is this layer upon layer of findings, one of which is the second dot point under 170CG3A, as part of 188Q. It was specifically found under the context of considering whether there was a valid reason that if people didn't subscribe to the wants of Pacific Coal it was by no act other than expressing a different point of view about the issues or not participating by taking up an AWA and that this was the individual detriment of each of the applicants and was harsh, unjust, unreasonable by way of overlap.

PN535

Again, applying impeccably, Burn v Frew, the High Court. Your Honour earlier set out in the decision is, for example, the evidence of a Mr Crooks, that someone like Mr McGuiness who had been there for 18 years did things like comment to Mr Crooks:

PN536

Hang on, I'd like to keep my job. I'd rather contractors not be put in.

PN537

The Commissioner summarised some of the evidence, that then led for multiple criteria in his ultimate score, for Mr McGuiness to be marked down for saying, one would have thought hardly radical ideas:

PN538

I'd like to keep my job. I'd like job security.

PN539

That was considered to lead, according to the employer, to somebody getting lower marks and it led to his termination. There is no dispute in that, in the evidence. That is the sort of matter, quite clearly, the Commissioner has referred to at that part of his decision. In terms of the outline, I have already dealt with Ms Hock.

PN540

In terms of what it means for the stay application there's then set out in paragraph 27 relevant authorities. I emphasise V and P Kellely Constructions because there can be no serious attack as set out on top of page 15 of the outline on the Commissioner's findings about it being harsh, unjust or unreasonable. If I can then turn - I think for the stay it is not seriously pressed - the grounds of appeal seem to suggest that if you had a breach of 170CK that it could not be used for deciding whether a termination for 170CG(3) is harsh, unjust or unreasonable. I just note paragraph 31 of our outline sets out an authority which says that approach is wrong.

PN541

I then turn to what really, despite the disallowance today, is a major plank of the employer's submissions. It really is an attack on the Commissioner's reasons. I have noted and I am not going to argue on the stay but there does seem to be one line of Full Bench authority querying whether in reinstatement matters reasons have to be given. That is why I have said, your Honour, assuming without conceding for the stay, the reasons point. If I can take your Honour to the authority of the Full Bench in Coal and Allied recently referred to. It was then Mahoney J, later the President of the New South Wales Court of Appeal, in Housing Commission of New South Wales v Tatmar Pastoral Company.

PN542

That is in the bundle of authorities provided on behalf of the employees. The passages which I rely upon appear in Mahoney Js judgment at 385(e). It really answers a multiple number of the grounds of appeal. For example, it suggested that Darlstrom had to be expressly dealt with by the Commissioner. I will develop how the Commissioner did deal with that argument of the employer and reject it, but it is wrong to submit that it had to be referred to anyway when one understands the duty to give reasons. The same applies to the suggestion that there had to be reference to the general manager Bates's right of appeal to him. There was no need to have given the compelling findings made by the Commissioner to make any such reference. That is confirmed by the passage 385(e) through to (f) which I adopt. The same applies at the very bottom as part of 385(g). The last line says:

PN543

In my opinion it is not open to a party on appeal to complain that reasons were not given for the decision or for a matter of fact or law which was or must have been decided if the matter was not the subject of submissions made to the Court below in a way which called for a reason to consideration of them.

PN544

If I pause there, Mr West raised today some reference in terms of remedy, taking the Commission to some other authorities being outside authorities. Now, I apprehend that if - I'm not sure what they are but if they be matters which were not subject argument below before the Commissioner and there's written employer submissions on remedy, it would be quite easy to check that, they are not even going to be properly subject to leave to appeal or to any appeal if they were not matters raised below.

PN545

At the moment it has been put a bit obtusely so I just flag that as a difficulty. Also by reference to page 386, (d) through to (g) inclusive, again it makes it clear that it was never necessary for Commissioner Hodder to make an explicit finding on each disputed piece of evidence or refer to each piece of evidence. Your Honour, if I can return to the outline - - -

PN546

THE VICE PRESIDENT: It might be convenient to have an adjournment for lunch now. Approximately how much longer do you think you will be? I'm not wishing to constrain you but I just want to get an idea.

PN547

MR DOCKING: At least 1 hour.

PN548

THE VICE PRESIDENT: Yes, all right. We will adjourn until 2 o'clock.

LUNCHEON ADJOURNMENT [12.48pm]

RESUMED [2.02pm]

PN549

THE VICE PRESIDENT: Yes, Mr Docking?

PN550

MR DOCKING: Thank you, your Honour. If I can go to page 18 of the outline dealing with operational requirement not mean a valid reason, in turn go to the employees' bundle of authorities which includes the most recent Full Bench in Lockwood Security Products Proprietary Limited PR908053. On this issue - and this is where I have said before how many Full Bench decisions are required to confirm that a valid operational reason is not determinative of whether there is a harsh, unjust or unreasonable termination. Your Honour will find an application of that approach in paragraphs 18 and 19 of Lockwood in the employees' bundle. Paragraph 19 half-way through says:

PN551

The Commissioner, consistent with principle and correctly in our view, held that ...(reads)... reasoning in this regard.

PN552

Whilst also looking at this Full Bench decision might I also flag without reading paragraph 29 of that Full Bench decision which applies a sound, defenceful or well-founded principle and then paragraphs 32 and 33 and again there is confirmation that in effect procedural unfairness can be enough, if you don't get an opportunity to respond before termination, for a finding of harsh, unjust or unreasonable, even if there's a genuine reduction in numbers.

PN553

The outline at page 20 paragraph 41 deals with how the Commissioner consistent with Full Bench authorities has found procedural unfairness and this is quite separate, your Honour, from the black list and the employer's failure to comply with its own policy requirements, in effect, quite separately from the black list was enough to find the terminations, each of them, were harsh, unjust or unreasonable. At page 22 of the outline your Honour will be able to read the references I have provided in paragraph 42 but it is not subject to an arguable case and even leave to appeal where his Honour - I should say the Commissioner - applied in effect the employer's own outline of contentions which was provided at the beginning of the case and made it clear how the PER system in the employer's own opening contentions was so important to the selection system and that is why the Commissioner found it was another employer recant based on what the employer had previously said its case was about.

PN554

His Honour - I should say the Commissioner - upheld the employees' submissions that you could show how the PERs were used because when one looked at what were called the future requirements, these were four criteria, in the employer's very own submissions they then marshalled the evidence and relied upon primarily matters in the performance effectiveness reviews to justify why somebody got a particular future requirement. In other words, as the Commissioner found, it was just an application of his von Doussa J in the Pasminco case about how when you look at future capacity and the like it draws upon your past performance. Past performance here was drawn from the performance effectiveness reviews.

PN555

The outline then from paragraph 44 deals with Darlstrom. Can I just flag some additional paragraphs in Darlstrom, apart from what Mr West referred your Honour to. This is in the employer bundle. The paragraphs I also flag are 21 which confirms even in a redundancy case the Commission applies basic notions of fairness in carrying out its functions. If I pause there, your Honour, it cannot be a matter of legitimate criticism where there are so many Full Benches confirming, including in selective redundancies, the Commissioner was bound to apply basic notions of fairness.

PN556

Paragraph 27 confirms that you have to look at the other paragraphs at 170C(g)(iii) when you rely upon reasons relating to capacity or conduct and perhaps unsatisfactory performance. At paragraph 32, especially where it sets out a number of findings, and the findings really turned upon being satisfied on the employer evidence on that case that employees were given improper opportunity to respond and they were satisfied in the evidence on that case that there were not deficiencies in the selection process. Finally, paragraph 33 which was read, I've already noted that on the evidence on the case before Commissioner Hodder there was evidence that people were targeted for dismissal for reasons other than based on an assessment of work performance and skills, that this was where people got selected because they said things like: I prefer job security, not using contractors or I want to stick to the clause 20, that was then effectively an award of the Commission and for insisting on their industrial rights under an industrial instrument, that is statutory rights, they got marked down.

PN557

The outline at page 23 deals with the appeal to the general manager, I've already taken your Honour to Mahoney's J judgment and there was no need for an explicit finding on the appeal to the general manager by Commission Hodder. In particular, this is the case where General Manager Bates was part of the conspiratorial agreement in place to help target people and to have people who insisted on their rights under the clause 20, which was an award, selected for retrenchment. He was the general manager in charge of that process. Part of what I provided in the bundle of material is the transcript where Production Manager Yates admitted that at the weekly manager's meetings, this was to say Mr Bates, Employee Relations Manager Mr McRae, the manager of maintenance, Mr Reardon and Mr Yates attended and each weekly manager's meeting they had a running score for a period of time about the reduction in CFMEU membership that had been achieved.

PN558

One of the figures early in 1998 recorded how it was down by 52 per cent and this was part of what Commissioner Hodder was that preference for people on AWAs, if you expressed a preference to stay on a collective agreement you were marked down and targeted and selected for retrenchment. The outline in paragraph 49 then turns to how there are multiple findings in relation to each individual. Again, your Honour, these stand quite separately and strongly, the way I've talked about it as being multiple layers in favour of applicants apart from the black list. It can be seen from paragraph 81 of the decisions set out on page 23 of the employee's outline that the Commissioner listed a number of flaws and inconsistencies in the selection system.

PN559

Then, page 24 of the outline sets out paragraph 182 of the decision, and as he was entitled to the Commissioner found that each of those flaws or inconsistencies applied to each and every applicant. The Commissioner confirmed a preference for the references in the submissions made by the employees, that is both the primary submissions and submissions in reply. There's nothing remarkable about that, to have a member to say: I prefer one version over the other. It is not subject properly to an appeal. It can be seen from reading, as I've set out in the outline at paragraph 50A, by properly reading the Commissioner's findings, he uses the words "each applicant", "the applicant," where he makes individual findings in this layer upon layer of findings in favour of applicants.

PN560

If I can then turn to - - -

PN561

THE VICE PRESIDENT: Sorry, who is Mr Albert?

PN562

MR DOCKING: Mr Albert is one of the employees, and what the Commissioner does when dealing with how he has considered all the submissions in evidence is set out as an example Mr Albert's submission in reply at paragraph 100 of the decision. If I can turn to the issue of - - -

PN563

THE VICE PRESIDENT: Each employee had a separate submission?

PN564

MR DOCKING: That is right, your Honour. What happened was there was, if I can call it some submissions of general application in the employee's primary case, the second compartment of those submissions then dealt with each and every individual employee. The employer adopted the same format in its written submissions. It had one folder dealing with general matters and a second folder dealing with each individual employee. In response, the employees put in reply some general submissions and a submission in reply for each individual. This is a case consistently with Mahoney's J approach, as recently approved by Full Bench, given Commissioner Hodder's findings which were of general application and then, as I've set out in this part of the outline, specific findings preferring the employees' submissions.

PN565

There was absolutely no need for him to go through each and every employee given the findings he had already made. When one looks at the various parts of 188ADU, as I said, he talks about "I find for each applicant," "I find for the applicants," he has made a finding for each and every one of them. There was no need for him to go through with a sub-heading for each applicant's name and repeat the finding. He is entitled to say: I find for each applicant and I find for the applicants matters which led to properly concluding the terminations are harsh or unjust or unreasonable. If I can turn to the part of the outline dealing with remedy because, at least in the written outline, paragraphs 198 and 199 were ignored in the employer's written outline.

PN566

Your Honour will see 198, Commissioner Hodder found as a separate and stand-alone alternative confirmation as follows:

PN567

In this regard the unavailability of a position vacancy does not provide the basis for refusing reinstatement.

PN568

Again, there's nothing remarkable about that approach in unfair dismissal or termination cases. Then paragraph 199 deals with each and every enumerated paragraph of 170CH(2). It is just plainly wrong, with great respect to Mr West, to say in effect that because the Commissioner in an earlier paragraph found in favour for remedy he was bound to have done his analysis in 198 and 199 before making that finding on remedy. There's no principles for judicial or quasi judicial Tribunal reasons to be in that sort of chronological type order. There's nothing that is properly subject to a complaint where Commissioner Hodder has in detail gone through each and every enumerated paragraph of 170CH(2)(a) through to (b) inclusive.

PN569

I'm looking at the employers' written submissions on remedy this morning that went before Commissioner Hodder, it is in the context of compensation as an alternative. It was conceded that viability was no reason not to make a compensation order, and that appeared at what is page 219 of the employers' written submissions. So far as I'm leaving it to financial or economic aspects, they didn't seem to be, in those written submissions, any argument that viability was a bar to reinstatement. It is repeatedly been said that there was in effect clear evidence that no positions were available for the employees. With great respect, it was a disputed matter before Commissioner Hodder. In the bundle of materials provided today the evidence shows that there were available positions in at least three respects. This is in the bundle that was filed yesterday.

PN570

It can be seen that there's the evidence of Mr Barnes, in his supplementary statement, where he identified nine employees who were willing to take voluntary redundancies and yet were retained by the employer. The second stream of evidence was cross-examined in from Production Manager Yates and that was there was going to be a new wash-plant operated by a contractor called: Sedgmans and it was anticipated that would go for 4 years and would involve 10 to 12 employees. The employer had no choice other than to put that wash-plant in because the equivalent of the environment protection authority in this State had required in Queensland for them to comply with their environmental obligations.

PN571

The third stream of evidence before Commissioner Hodder was that there was a shortage of open cut examiners. Mr Reardon, in the bundle that I've provided was cross-examined about his helpful notebooks. Your Honour, three of the successful employees were open cut examiners, namely Mr Barnes, Mr Bettridge and Mr Michelson and it was always the employees submission that there were positions available or vacant for these employees at Blair Athol.

PN572

In any event, as was made clear from paragraph 198 of Commissioner Hodder's decision, this is again where they use the health and safety analogy, there's the failed safety no matter how you look at the decision. He has found unavailability of positions in any event did not matter. Now, part of what was before Commissioner Hodder relied upon both sides in argument in written submissions was Commissioner Simmons decision in Brooks v Australian Dried Foods which is a selective redundancy case where the Commissioner Simmons reinstated employees despite the argument that there were no positions to go back, perhaps having been brought up in the New South Wales jurisdiction, it is squarely in line with Lody v Holloway where it is in the statutory exhortation in the present Act and Lody makes it clear that a fair go all round and the principles applied involve restoring status quo to the point where the injustice had occurred.

PN573

In other words, time of termination, no guarantee of future employment but the fair go all round leads to the employment relationship being restored. Can I now go to balance of convenience and can I make it clear that this is strenuously pressed on behalf of the employees quite separately and in addition to any argument that there's no arguable case. The outline commences at paragraph 55. So far as paragraph 55 is concerned, it applies the normal or I think accepted rule in this jurisdiction, departure from the ordinary rule that:

PN574

A successful litigant is entitled to the fruits of his litigation pending the determination of any appeal.

PN575

Now, it is really up to the employer to justify departure from that rule. Now, 56 speaks for itself, 57 this is where I do rely upon a proper examination of all the relevant circumstances includes matters like the black list still to go and the blood sport as part of paragraph 57. Paragraph 58, Mr Barnes' schedule conveniently summarises the financial hardship to employees. Your Honour will have seen there is the wages column which shows what they would have earned as wages and that excludes other components of remuneration but at least has the wages component.

PN576

It then has separately the income that has been earned by the employees as required by the statutory declaration in Commissioner Hodder's orders. Here there's a stronger position even than the Hunter Valley 1 case because your Honour just does not have to rely upon what was called to be without income being the proxy for hardship, your Honour can actually see quite graphically the loss that has been suffered by each of the employees, when one looks at the wages column as opposed to the income column.

PN577

Paragraph 59 of the outline picks up the hardship that has been caused to employees and their families and the strong submissions made for the seven employees who were ready, willing and able to go back to work now, because they are unemployed in terms of in no job with income, that the usual employer submission that: well, if the employer loses the appeal ordering back pay will provide adequate relief. That is just not right, when one looks properly at the facts and circumstances, especially in this case. Your Honour will be able to see that Mr Barnes sets out in his statement from paragraph 22 the type of prejudice and hardship to respondents living in Claremont.

PN578

It is pointed out in paragraph 22 they are in a town of a population of about 1800, paragraph 23 has the admissions of Mr Bates before Commissioner Hodder about how he went to the press and described people as poor performers. Paragraph 24 confirmed how that has had an impact on the employee's standing in the community and their ability to get work. Paragraph 25 confirms the adverse impact that has had on getting employment within the town. There next appears under the heading, "Prejudice and hardship to respondents and their families", a specific examples of where because employees have been terminated, it has had an impact on their partners or wives.

PN579

There's the example of Mr Barnes' wife, Jacqueline Barnes, who has lost employment and has a causal relationship with his terminations at Blair Athol. Kathy McGuiness, wife of Alan McGuiness, is dealt with in paragraph 26.2 and there's a reference there to staff, meaning staff in the traditional sense who have refused to drink at a club because she is the wife of Alan McGuiness. Now, Commissioner Hodder sets out earlier in his decision where I think Mr McGuiness had been employed at Blair Athol for about 18 years and 4 months before his termination.

PN580

26.3 deals with the position of Mr and Mrs Walsh. Paragraph 27 deals with the teasing, harassment at school, comments like: if your fathers weren't lazy and did their work, they would not be sacked. There's the undisputed examples that appear and the impact it has had on Mr McGuiness' son, Mr Barnes' daughter and Mr Finger's daughter in 27.3. 27.4 can't be put in dispute on the stay that the uncertainty, the pressures associated with no or reduced wages have detrimentally impacted upon the studies of the children of the respondents.

PN581

The sort of publicity which employers outline tries to invoke in its favour is reflected in paragraph 28 where despite five of the employees not even being in company provided housing, the company has sought fit to put out literature suggesting that all 16 were in subsidised housing when it was never true at least in respect of five. It can then be seen further details of the impact on the personal circumstances of each applicant or their family members in paragraph 29. Mr Morgan Lindley, your Honour, had 40 years in the mining industry.

PN582

He started, if I remember the evidence right, when they mined using picks, shovels and wheelbarrows and then it was suggested to him, he was a poor performer and that is why he got terminated. This was a man who is now I think it is 62 but it would be clear on his application, because of being terminated and he has not been able to get any employment, he has had to sell part of what he was setting up after 40 years in the mining industry. It was supposed to be his retirement dream. The same applies to people like Mr Cussack, Rogers, Walsh, had to dispose of assets and the like to survive.

PN583

Your Honour will see that 29.5 deals with someone like Mr Kelly. 29.6 deals with Mr Finger where, as he said, he was a three generation of family in Claremont and it got so bad he thought he had to move on. He had the emotional strain, the severe financial pressure of being unemployed and black listed. He was in the position that he and his family were wondering if they could afford to even send their kids to play sport or get fuel for their car. 29.7 confirms despite Mr Bates putting on the noticeboard an admission that the hardships being caused to the dismissed employees and their families post termination, the employer has done nothing to alleviate that termination other than to go public and criticise the employees as poor performers and living in subsidised housing.

PN584

29.8 confirms that the sort of conduct of the employer has resulted in low self esteem and some people being respondents and family members are being treated as a result of being effected by depression. Mr Barnes dealt with this in a sensitive manner. If he was to be cross-examined on this in the witness-box, he was going to reveal who they were if that was a matter in dispute but thought there should be some sensitivity about this type of matter. There was evidence before Commissioner Hodder concerning Mr Morgan Lindley being effected by the termination process.

PN585

The employer at one stage wanted to have him recalled. It was accepted the medical evidence which was marked as exhibits showed that it was inappropriate for his psychological and physical well being to recall but once this was all lifted, the cloud was removed, he would be fit and proper to in effect return to work. So there was actually some evidence of this before Commissioner Hodder.

PN586

Whilst looking at Mr Barnes' statement, and there is no dispute about this, just in the way Mr Yates foreshadowed in his admissions in cross-examination, people have been employed by Sedgmans doing exactly the sort of work many of the employees had performed previously. It can be seen the numbers are confirmed in paragraph 34 how many people Sedgmans employed. It has to be remembered, your Honour, part of the plan was to introduce what is called in the employer's productivity improvement plan to introduce non-union contract labour. That is why employees were selected. If they made comments like: I prefer not using contractors, our clause 20 governs who and when contractors can be used and they had got marked down.

PN587

Let us see what has now happened with Cooks Construction which appears in paragraph 35 onwards. It seems these figures say in 36.1 may be understated. There was at least 70 to 75 employees of Cooks Construction doing overburden work, the very same work nine of the employees performed. It has dropped down to 30 now. What is of concern is your Honour will be able to see in paragraph 37 and 38 Michelson, Smith and Rogers who were working for Cooks at other mine sites, the employer at Blair Athol has refused to have them on site. If they are on the list of 16, even though they can work for Cook Constructions at other mine sites, the employer at Blair Athol will not let them back on site.

PN588

The same is applied to someone like Trevor Kelly as dealt with in paragraph 39 when he worked for another - actually it was Cooks at BHP Gregory. It was confirmed that if he was on the list of 16 he couldn't get back on site. Paragraph 40 deals with one of the employee's sons. It is then from paragraph 41 through to 45 inclusive - this is where Mr Kelly when working with a local contractor has not been allowed on site. The same is applied to Don Halverson, one of the employees. Paragraph 46 of Mr Barnes' statement under the heading: Hours worked at Blair Athol, now, there can't be any dispute about these figures. They are taken from the employer's records and they show attachment 10 that there's actually more people working there made up of permanent employees and contractors than there was before the redundancies.

PN589

There's now, when you add the contractors and permanent employees, 387 as opposed to about 335 in 1998. Paragraph 47 reflects the employer's own record. When one looks at overtime worked there's another 4.59 full-time positions there. By June 2001 in paragraph 48 it has gone up to the equivalent of 7.45 full-time positions. I note here, your Honour, with all the contractors and overtime being worked it is only seven out of the 16 who presently wish to return to work. The reasons are explained in Mr Barnes' statement earlier that a number have said: well, I wanted to go back at the time, they haven't let us - that is the other nine - I don't want to risk now losing what job I have. Paragraph 49 could - - -

PN590

THE VICE PRESIDENT: I didn't understand that was a permanent view but I may have misunderstood.

PN591

MR DOCKING: No, it is not the permanent view.

PN592

THE VICE PRESIDENT: No, the present view.

PN593

MR DOCKING: Given it has taken 6 months to get this far they have gone - and Mr Barnes, as he said, has had meetings with them. People have said: well, as of we wrote at the time, we were ready to go back in the gate then but given the delay of 6 months, given Mr Bates goes around, despite there being Commission orders and the like, saying people will not be required to work, they have taken the view, well, temporarily until the appeal is determined and hopefully in their favour, their preference for the moment temporarily is to stay in their present positions. It is the seven employees who are not in paid employment are saying there should be a refusal of the stay for the reinstatement and continuity orders and be permitted to return now.

PN594

That is why I am taking your Honour to how there are all these contractor positions. There's the excess of overtime being worked which amply cater for all 16 but at the very least the seven employees. In terms of where I draw support in principle - - -

PN595

THE VICE PRESIDENT: Sorry, Mr Docking, just while we are on that, if I declined to stay the reinstatement order, the present situation I presume would just continue with the company paying but not allowing or requiring the employees to work.

PN596

MR DOCKING: There would really be two options. I would hope that the employer would let people then do a fair day's work for a fair day's pay as the first option and take heed of the Commission refusing the stay of the reinstatement for those seven - - -

PN597

THE VICE PRESIDENT: They do have the view that they are entitled to do what they are doing under the reinstatement order.

PN598

MR DOCKING: That is the second option, that they may - - -

PN599

THE VICE PRESIDENT: Yes.

PN600

MR DOCKING: - - - unilaterally decide as the employer, even though we say it is not complying with the orders, keep paying without requiring a performance of any work.

PN601

THE VICE PRESIDENT: Yes.

PN602

MR DOCKING: I mean it is not a: no work no pay, because here it is: pay because we don't require you to work.

PN603

THE VICE PRESIDENT: Yes.

PN604

MR DOCKING: You are an employee, they are saying, for all intents and purposes. Look at the pay slip and the like. It is just: we don't require as part of the work bargain for you to turn up and do anything. That is what has happened for about 6 months so far, maybe a little bit over 6 months now into 27 weeks.

PN605

THE VICE PRESIDENT: In the Hunter Valley number one order Vice President Ross, as I understand it, required - well, said the weekly payments were to be paid into the interest bearing account, they weren't to go direct to the employees.

PN606

MR DOCKING: There was then a further hearing, although on that occasion I didn't appear just by dint of being before Haylen J in something else and Mr Slevin was certainly instructing and I think the outcome is that rather than going into an interest bearing account those employees are now being paid directly the money. If someone is working there's an off-set for the money earned from other employment against what they would get from Hunter Valley one. There has been - - -

PN607

THE VICE PRESIDENT: I was just looking at the 25 September order which I think is the latest one.

PN608

MR WEST: No, there's a later one.

PN609

THE VICE PRESIDENT: Is there? Well, that gave me three. Well, I haven't got the latest one then.

PN610

MR DOCKING: I think the answer is no. I am looking at Mr Slevin because I - - -

PN611

THE VICE PRESIDENT: Yes, yes.

PN612

MR DOCKING: - - - don't think I've seen that final order.

PN613

MR WEST: No, there's a - may I?

PN614

THE VICE PRESIDENT: Yes, Mr West.

PN615

MR WEST: Your Honour, in substance what my learned friend has said is correct. The Vice President Ross was persuaded after the Full Bench had refused leave to - had rejected an appeal from his first stay order to vary nevertheless the order which he had made and which was the subject of the appeal. Perhaps I can hand up this transcript here of what happened in respect of this. What happened, your Honour, was this, that his Honour having made the stay the subject of the appeal, even though the appeal was rejected, he revisited the order and directed that the weekly payments be paid into the interest bearing bank account.

PN616

When he did that the union gave notice that it would move at an appropriate time to seek to further modify that stay. That happened, came before the Full Appeal Bench on Tuesday, 2 October and their Honours sitting as the Appeal Bench but not on appeal from Vice President Ross, he is sitting in the middle of the ..... , nevertheless heard the union's application for modification. The union sought an extensive modification and in that they were unsuccessful. What, however, was worked out on the run was various concessions were made by the company and the Bench retired, came back and made an announcement the effect of which is contained in the transcript which is helpfully, unnumbered, but it is the last two leaves.

PN617

THE VICE PRESIDENT: The paragraphs are numbered.

PN618

MR WEST: I'm sorry, so they are. Yes, I'm sorry.

PN619

THE VICE PRESIDENT: The new system.

PN620

MR WEST: I've not yet become used to this. From 142 - - -

PN621

THE VICE PRESIDENT: It has got a lot of advantages too, this way.

PN622

MR WEST: - - - to 151. Now, the effect of it is this, relevantly, that the employees will be paid their weekly salary, subject to certification that any earnings they have otherwise had will be deducted and the Bench identified which deductions were to be allowable and which not and when you look at those you will see that they are not the same as the kind of deductions which Commissioner Hodder had directed should be made, but be that as it may. That enabled, in effect, the backpay to be quarantined in the IBD, subject to interest. The weekly payments to be made, subject to certification, and that is what - if your Honour reads those two pages that tells your Honour what was to happen and the Full Bench then directed that the fund to be comprised of the backpay was to be constituted by a payment in no later than last Friday.

PN623

Commissioner Bacon was given the task of riding shot gun on all of that, and we asked for that to happen. Now, your Honour might think that something like that might happen here, that is, as I have said earlier in my submissions, that is an available view.

PN624

THE VICE PRESIDENT: It is just that I only had the three stay orders made by Vice President Ross, plus the appeal decision. I wasn't aware of that episode.

PN625

MR WEST: No. Well, I'm sorry, your Honour. Your Honour's remark in that regard I must say flew past my cognition, and for that I apologise. Somewhere there's a formal order giving effect to this, but I'm afraid in the blizzard of paper that has been emanating I haven't seen it. But nevertheless that sets out the document, what they were proposing to have done with it.

PN626

THE VICE PRESIDENT: Yes, all right, thanks then. Yes, Mr Docking.

PN627

MR DOCKING: Your Honour, dealing with the Hunter Valley 1 matter, and there's two fundamentally distinguishable features, if not three. One is the findings below of Commissioner Hodder, which led to the findings of harsh, unjust or unreasonable and then reinstatement. Hunter Valley 1 is a very strong case, but Blair Athol perhaps even exceeds it in the strength of the case for the employees in view of the findings of Commissioner Hodder.

PN628

Secondly, as set out earlier in the outline, there's something fundamentally different to Hunter Valley number 1. The employer, without having the backpay orders resolved sought a stay in the usual, orderly and efficient manner of dealing with a stay. A stay is an urgent application, you don't wait - - -

PN629

THE VICE PRESIDENT: May be not. So at Blair Athol the employees have been paid for 6 months.

PN630

MR DOCKING: Yes.

PN631

THE VICE PRESIDENT: And at Hunter Valley number 1, they haven't been paid and until, at least, until the order of 2 October - - -

PN632

MR DOCKING: Yes, your Honour, but it does not deal with the in-limbo malaise that employees are left in who want to in Claremont, town of 1800 people, people like Mr Finger, third generation people living in Claremont.

PN633

THE VICE PRESIDENT: Yes.

PN634

MR DOCKING: Had to of put up with the stigma of: you are poor performer, daughter being teased at work - at school.

PN635

THE VICE PRESIDENT: Yes, I've read all that, and you have just gone through it, Mr Docking, but I would have thought that this is in your favour that to make a stay on the - not on the backpay but on the other pays, would stop people at Blair Athol getting money that they have been getting for the last 6 months, whereas at Hunter Valley number 1 they hadn't been getting it.

PN636

MR DOCKING: Yes, your Honour, but this is the bite, although it wasn't present before the Full Bench, I think it is predicated on the basis that there be an undertaking that the money be repaid if the employer is successful on appeal.

PN637

THE VICE PRESIDENT: That wasn't forthcoming. There was no undertaking given, was there, at Hunter Valley number 1?

PN638

MR WEST: Yes, there was, your Honour.

PN639

THE VICE PRESIDENT: There was.

PN640

MR DOCKING: I think, ultimately, in those proceedings before the Full Bench - - -

PN641

THE VICE PRESIDENT: In this transcript somewhere?

PN642

MR DOCKING: - - - the employees, I'm led to believe, indicated that such an undertaking would be forthcoming.

PN643

THE VICE PRESIDENT: I see.

PN644

MR DOCKING: And that raises something I was going to come to shortly, but the employer, it is clear from Mr Bates' letter attached to Mr Barnes, is saying: if we, the employer, are successful on the stay, retrospectively from today we are going to seek to recover 27 weeks, or thereabouts, payment. This is where the employer's case is, you are in an existing employer-employee relationship and we are able to recover the money from you.

PN645

THE VICE PRESIDENT: Yes.

PN646

MR DOCKING: As I have advanced in the submissions, it is submitted that there cannot be a fictional or notional reinstatement. One has to be put back working. Now, an employer shouldn't be able to advantage itself by saying: we ignored the orders and therefore we can come and ask for people to backpay, at this stage, about 27 weeks payment. Where people like Mr Barnes had spent money on things he would never have spent the money on, if that was made clear. At least, I think it is three of the employees have spend money either paying out a car, or buying - - -

PN647

THE VICE PRESIDENT: Yes.

PN648

MR DOCKING: - - - two vehicles.

PN649

THE VICE PRESIDENT: Yes, I appreciate that and I follow your point there.

PN650

MR DOCKING: It is another issue that prospective requirement, so far as an undertaking is concerned, and I was going to come to that and say it is a matter, if your Honour, when I come to the alternative stay orders is against the employees in the orders that we have advanced, it be a matter for your Honour whether the Commission thought it was appropriate to not order but to indicate an undertaking to repay would be required prospectively, that is, for any money paid from today or a day or so, whenever your Honour determines the stay matter, but if I can return to the point - - -

PN651

THE VICE PRESIDENT: Yes.

PN652

MR DOCKING: - - - I was at the outline? Page 27, paragraph 61 shows that there this evidence of availability of positions at Blair Athol acting correctly with principles confirmed that there is no relevant prejudice or difficulty by putting the seven back in the mean time. There's the contractor positions, and it is well understood industrially if you engage somebody else with reinstatement cases pending, acting properly and industrially one would tell those contractors there is the reinstatement case pending, if they are successful then we may have to engage our employees again and your position won't be there.

PN653

Often you hear an employer saying: well, so what if we have got contractors, we would have to let them go. But it is made clear in the series of authoritative decisions that I have set out in paragraph 61, that is no bar. Paragraph 62 deals with the employer's liability. It is quite clear that Commissioner Hodder, on a fair reading of his decision, has accepted parts of the employees' submissions where it talked about this being the dream mine, the world's best resource and the like. The employer can't really come along and suggest otherwise because it was cross-examined in by the employer from Mr Barnes during the hearing proper, that it was the jewel in the crown in terms of the stripping ratio of overburden and coal.

PN654

It really is a non issue in terms of viability which I do raise because it is expressly put in the employer's written outline, the issue of viability and the facts are just all against them. Before going to the alternative stay orders, can I just deal with some points Mr West raised orally today? At one stage, I think, he indicated to the effect that this is not about unsatisfactory employees or something like that. Although I do not have the source document with me, just my typed submission, I think exhibit PC21, this was what the Commissioner used as the: another employer recant, was dated 3 February 1999: Outline of submissions of Pacific Coal. Paragraph 1.2D said about the employees:

PN655

Unsatisfactory performance in comparison with others prior to their termination.

PN656

It was always part of the case that these employees were engaged in unsatisfactory performance compared to others, but two of the allegations which show that was the employer's case, is there was an allegation about Mr Barnes allegedly falsifying a time sheet to claim a late crib payment, was used as part of his ratings. Another example was Mr Crichton allegedly going missing in a shift, or in other words, abandoning his work and that was part of what was relied upon in his ratings.

PN657

The employer's very own outline, you can't change the goal posts when you realise your case has gone badly and you have lost, as the employer wants to do, also said at paragraph 1.2A of that outline back in 3 February 1999 that:

PN658

The employees' performance was lower than the performance of other employees who were provided with roles.

PN659

So it is a gloss, or a recreation of the case that is not permissible or possible to now say it had nothing, in effect, to do with unsatisfactory performance, or conduct or capacity. I appreciate, Mr West and Mr Parry were not in the case below, but I'm afraid it just does not reflect how the case was conducted. I think quite properly something fell from your Honour where it said: well, Commissioner Hodder refers to 170CH(7) and it should have been 170CH(2). Well, I think the factors are the same and that is the sort of verbal slick that is properly called putting a find tooth comb looking for a - - -

PN660

THE VICE PRESIDENT: Well, I didn't understand Mr West to take any point on that. It just struck me as a typo, that was all.

PN661

MR DOCKING: Yes, and insofar as great respect to Mr West, it is just plainly wrong to suggest that the employees did not challenge the business case. There are extensive written submissions made below about the credit of general manager Barnes. In terms of challenging the business case, it shows a fundamental misunderstanding of the principles in Browne v Dunn. These also are reflected in the submissions in reply of the employees below and included are references to Seymour v ABC (1997) 19NSW LR219 where it is made clear that when you file statements and the like, there's no need to cross-examine the other side for example on the statements.

PN662

Secondly, also referred to is the case of Crown v Byckzo, B-y-c-k-z-o, number 2 (1977) 17 South Australian State Reports for 60 of 466.8, South Australian Supreme Court in Banco and there the principle was stated:

PN663

I do not agree that counsel when faced with apparent improbabilities, inconsistencies and incredibilities and the evidence of his opponents witnesses is necessary to probe them in detail if he wants to comment on them adversely in his final address. Sometimes it may be better advocacy to leave the matter with an uplifted eyebrow. This is not as I see it, a case of the application of the rule in Brown v Dunn.

PN664

Your Honour, if I can pause there. In terms of this business case presented by Mr Bates, by the time he got in the witness-box, there was Mr McRae, Mr Key, Mr Reardon and Mr Yates who had all admitted in effect things along the line of: it was only a matter of how much money was made from the Blair Athol Mine. It was the dream resource and the like. The business case was well and truly taken head on, additionally the written submissions showed that Mr Bates was challenged extensively, not just about comments he made to Ms Hock which were to the effect: you have got an arse like a working bullock. That is how the general manager treated his direct administrative employees.

PN665

He was challenged more specifically on the black list still to go. He was challenged directly on the 21 October 1997 meeting. This was the one I took your Honour to in paragraph 152 of the decision where Mr Reardon changed as Commissioner Hodder found fundamentally the meaning of his own notes. Originally it was in effect the black list very unlikely to get seven or eight, that is meet expectations and that was changed to an opposite meaning. They are but a few of the examples of where Mr Bates on the business case, in other words, he was challenged to show that the terminations were spiteful, prejudice and capricious for each and every one of the applicants.

PN666

Your Honour, I touched in partly one of the oral submissions today which seems to be to the effect that reading properly the current provisions of the Workplace Relations Act, if an employer has selectively retrenched people, there can never be reinstatement. Now, with great respect, that is not what the legislation says. I've already indicated Brooks v Australian Dried Foods was one case, I think both sides refer to where Commissioner Simmonds reinstated people. It may be the desire of the employer for future cases that the legislation or regulations that may be brought in that it was not the statutory position at the time of these cases.

PN667

It would be very much like your honour might recall the argument that was dealt with in the Kenefec line of cases when it was 170DC and 170DE where it was suggested that because of the selective retrenchment, the position is different if someone got dismissed for a misconduct and the full Industrial's Court where special leave was refused and the High Court found it would reply a retractable language in the legislation to have that finding for people who were selectively terminated were in a less advantageous position than those who, say, got dismissed for misconduct.

PN668

That leads to the normal rule of statutory construction that it is absurd, irrational, to suggest here where people are employed for 8 years 4 months up to about 18_ years would have a different right to seek relief under the legislation that applied to them compared to if I turned up representing someone who was employed for 6 months and got dismissed for misconduct. I've already dealt with, your Honour, something that was raised about the delay. The Hunter Valley 1 chronology shows that that is a non issue here because they didn't wait in Hunter Valley 1 to seek a stay.

PN669

If I can then go back to the outline to the alternative conditional orders that are raised, your Honour can see from paragraph 63 the primary position for the group of seven employees is they oppose the reinstatement and continuity orders being stayed. The alternative position for those seven then appears in paragraph 64. Can I take your Honour to what should be the last case in the employer's - employee's bundle of Bankstown City Council v Peter John Paris, the judgment of Peterson J.

PN670

THE VICE PRESIDENT: Mr Docking, when you say in 64 that they seek a conditional stay, does that really mean that they do not oppose a stay on that condition?

PN671

MR DOCKING: Your Honour, the primary position is no stay for - - -

PN672

THE VICE PRESIDENT: Yes, in 63.

PN673

MR DOCKING: If your Honour is against us and looking at some alternative, they are the conditions in 64A and B of the type they would advance as being the alternative. Seek may be - - -

PN674

THE VICE PRESIDENT: It was just the words "seek a conditional stay" that struck me.

PN675

MR DOCKING: Yes. It really is if your Honour rejects our primary position and is contemplating an alternative.

PN676

THE VICE PRESIDENT: Yes, that would be their next fall back. Yes, all right. Sorry, you were going to take me to the case of?

PN677

MR DOCKING: Paris which hopefully is the last in the employee's bundle, that is an internet judgment.

PN678

THE VICE PRESIDENT: Yes, I've got that.

PN679

MR DOCKING: I only need to take your Honour, if I use the internet pages in the top right hand corner.

PN680

THE VICE PRESIDENT: Yes.

PN681

MR DOCKING: Page 25 of 26, about halfway down, there's a paragraph, "Looking at the circumstances here".

PN682

THE VICE PRESIDENT: Yes, thanks.

PN683

MR DOCKING: It does say in about the fifth line in that matter, Peterson J wasn't convinced there was an arguable case. It then deals within the second last paragraph:

PN684

I have serious difficulty in respect to permitting Mr Paris to return.

PN685

That deals with the delay in time. If you like, it is a double edged proposition. Peterson J looks at it and says:

PN686

It argues for an against or militates for and against the respective positions.

PN687

What his Honour then does, and this open to your Honour to do in this matter, is at the bottom of page 25 says:

PN688

I therefore stay orders 1 and 4 of the orders under appeal upon the condition that the council pay Mr Paris on and from 1 February 1999 the sum of $454.12 on the basis I have described and also on the basis that my intention is the money is paid under that order not be recoverable should the appeal be successful, I will order accordingly.

PN689

That is the alternative that is pressed in 64B. I've already dealt with, your Honour, how - what has happened for 27 weeks so far and what might happen respectively. I would have thought it was within the 45 of the Workplace Relations Act that why power on stays from the time the appeal was lodged for your Honour to make it a condition that the moneys already paid up until any determination on the stay not be recoverable. Additionally and separately therefore, it is also sought in the alternative as a matter of discretion on really the special facts of this case, what has happened here, that there be the same order for any prospective payments which are made until the appeal be successful.

PN690

What is then set out from paragraph 65 is the position for the group of other nine successful employees, those who have some job at the moment although the amount earned can be as little as 400 gross a week up into larger figures where a few have contracting mining positions, primary position in 65 is that in effect the status quo should continue to prevail that they get paid by Blair Athol in the way Blair Athol was unilaterally decided to pay them over the last 6 months. The alternative put for those employees - - -

PN691

THE VICE PRESIDENT: Is 65A and B the same as 64A and B?

PN692

MR DOCKING: Yes, your Honour.

PN693

THE VICE PRESIDENT: Yes.

PN694

MR DOCKING: And the alternative for those nine employees who have some work related income is set out in 66, it really would be the difference between what they are earning now and what they would at Blair Athol. There is, as I understand, no dispute in the back-pay of Blair Athol that part of the ordinary wages is a regular rostered overtime. What has been sought, in the alternative, in paragraph 66 is putting aside the rostered ordinary overtime which is accepted as back-pay and would be, one assumes for the future, to deal with what was one to do with additional overtime or perhaps it can be called: discretionary overtime that is worked.

PN695

Now, the evidence of Mr Barnes' confirms that there is a lot of overtime being worked, certainly up till June 2001. That is why, your Honour, looking at 66(a)(i) and (ii) it is suggested that if this alternative was entertained by the Commission as a matter of fairness balancing the rights of both sides it should exclude overtime so that neither side is advantaged or disadvantaged, that being what I call: discretionary overtime as opposed to the normal rostered overtime that is part of the Blair Athol wages' component. Paragraph 68, it seems at least as a matter of agreement it was always the position, just like it was in the Hunter Valley 1 case, the employees were not seeking to get the lost remuneration or back-pay placed other than in a bank account.

PN696

I think at least in this case we've moved to the position where even the employer accepts that to be the case. Unless there's some other matter your Honour wished me to address, they are the submissions.

PN697

THE VICE PRESIDENT: Right, thanks, I might just say I now have got a copy of the Full Bench order in the Hunter Valley, which is PR909940, and that does make it clear that those payments are to be made to the respondent, either the full amount or subject to a deduction if they receive income. Thanks then, Mr Docking.

PN698

MR DOCKING: Your Honour, there was one point I should confirm which may be of academic interest in the appeal or may need to be determined, as I understand what the Full Bench did in the Hunter Valley one is to exclude Social Security payments from the calculations but Commissioner Hodder has ruled, in effect, that Social Security payments of a relevant type should be deducted so there does seem to be a divergence of approach. Whether that is an academic matter or gets agitated later is yet to be seen.

PN699

MR WEST: Well, it might get agitated later I think, your Honour.

PN700

MR DOCKING: I'm not suggesting your Honour resolves it now but it was a point of distinction.

PN701

MR WEST: Yes, I was asked on my feet, "What about Social Security payments?" I was tempted to answer, as I would in another jurisdiction: you take account of them and they come out, and I was urged to think that perhaps in the Commission there's a different view. Now, it is the first I've ever heard of it and I confessed my ignorance to the Full Bench and said, "I haven't the faintest idea, I don't know and I've not come prepared to deal with that." The Commission in its wisdom said, "Well, we are going to direct they come out." Well, sobeit, but that is a matter here for another day as to whether or not the quantum of the corpus of that fund should be reduced or increased by any particular amount depending on what happens with the result of the appeal.

PN702

Your Honour will notice that the Full Bench did reserve to themselves, admittedly at our urging, that there are matters which may well be reviewed depending upon the outcome of the appeal as to what precise amounts of money might be involved, because one can't foresee with perfect clarity what issues might arise. If, for example, the appeal were unsuccessful and there were questions as to what were the proper amounts to be paid, there may have to be consideration given to that and the same here, and that is why that save-all was put. May I deal, hopefully swiftly, with what has been put by my learned friend? The starting point for the submissions is that we submit surprisingly that the company is in breach of the orders for reinstatement, it is nothing of the sort.

PN703

The judgment that is relied upon to make good that proposition on behalf of the respondents seems to be the RTA and the SDA case in the New South Wales Industrial Commission. The issue, which was being discussed by the Vice President, Karl J, is apparent on page 46, "It is normal." His Honour says at about half-way down the page:

PN704

In my opinion the effect of the claim so made and the award made in pursuance thereof was to impose to on the company an obligation, a breach of which would be punishable at law which was impossible of compliance.

PN705

The reason why was the beneficiary of the order was dead.

PN706

THE VICE PRESIDENT: I remember the case well.

PN707

MR WEST: Absolutely, it was a legal first.

PN708

THE VICE PRESIDENT: It was famous, yes.

PN709

MR WEST: It was in the context of discussing how one could reinstate a dead person that his Honour came to consider what was meant by reinstatement. That is how his Honour then says at the bottom of the page:

PN710

Support for the essential ingredient, namely that it wasn't to be academic.

PN711

It comes from the comments of President Riddington in Sheridan v Central Distant Ganglands.

PN712

THE VICE PRESIDENT: It should be Piddington, Piddington, I imagine?

PN713

MR WEST: Piddington, yes. Absolutely, and then at the top of page 47 some interesting and highly relevant findings of fact should be mentioned. In summary at the top his Honour describes what happened to the disrated employee, he had obviously been down-graded and then he was sacked. He says:

PN714

The Commission in addition to the imposition of an penalty on the employer ordered that Piper be reimbursed the wages lost by him and directed that he be reinstated in his old or similar position.

PN715

The order added:

PN716

This reinstatement is to include seniority in the service as if he had never been disrated.

PN717

As a result of the order the employer paid the amount of the penalty and also the amount of wages due to Piper from the date of his disrating up until the time of his subsequent dismissal from the service. He was therefore not reinstated in his old or a similar position. They paid him up until time of dismissal and that is where they left it. This case is not authority for the proposition, which our learned friend tried to extract from it, namely that an order of reinstatement carries with it an enforceable legal obligation upon the employer who suffers the order that the employee has to be put to work. That is the effect of what your argument has been asked to do and that is why our learned friend's submissions become so strained on this question. He wants to look in opposite directions at once, he wants to say: you can have the fund, the back-pay fund, which is a recognition of the reinstatement. The company said in the letters the employees were reinstated.

PN718

That is what the company was ordered to do but it does not follow from that that the employees must be allowed to come through the gate, go on a shift, perform work and be paid for that, but that is the consequence that our learned friend wants to get from this case and it does not go with a bull's roar of that and it would be amazing if it did. What the employer did was to try, with some very slick legal advice it seems, which was fundamentally wrong, was that if they restored the rating and paid in the missing sum but never allowed him thereafter to continue, that was compliance with the notion of reinstatement. Well, that might have been thought to be the law back in, was it 1928, and the Commission put paid to it, but that is what all that was about, it has got nothing to do with the proposition that is now being advanced and it is patent that, in our learned friend's case, he says: look, this company is not playing ball, it is paying these people and that is academic.

PN719

Well, what is academic about it, one asks rhetorically? They are being paid wages. These people have been ordered to be put back and paid on the payroll and they are. The company is entitled to say - as they have - that is it, we are not going beyond that. They have been ordered to be treated with continuity and that is taken care of. Otherwise, the back-pay fund would not exist. The whole argument is, it stands the law on its head. Now, I don't propose to spend further time on it, your Honour, unless your Honour wishes me to but it is fundamentally misconceived and wrong.

PN720

There is no question that the company is doing other than complying with the orders that were made against it. Our learned friend then says: well, that is a significant reason why on the question of balance of convenience you should not give them a stay, because they are in effect not complying with Court orders. They come to Court with dirty hands. Well, we submit that is completely wrong. The significant question in this case about balance of convenience is whether there is some disentitlement on behalf of our client to obtain a stay in respect of the weekly ongoing payments by reason of not having brought the application on for hearing before today - that is the only question. I have already answered that, I don't wish to put those submissions again.

PN721

Your Honour has a number of alternatives which are open to your Honour, depending upon how your Honour sees this, including granting a stay but making it prospective in the sense that, doing nothing about the previous payments. Your Honour does not have to make an order - and your Honour with respect should not make an order that you have been invited to make - namely that our client, if successful in the appeal, ought not be able to recover moneys paid by way of weekly payments up till the date of the appeal, or some other date nominated by the Commission. That is a very strange order in our respectful submission because it involves a fundamental dis-equality. It is this: if our client wins the appeal, it will be as though the orders were never made. The slate will be wiped clean, back until the time of the terminations. There will be no payments about anything.

PN722

It is a very odd concept that if a party is successful in that way, it is to be nevertheless burdened by having to pay money because it won when had the order never been made in the first place, "wrongly", it would never have had to pay the money at all. Now, there is something fundamentally wrong with that sort of order and in our respectful submission this Commission wouldn't make it. If our client were of the view that in the event the appeal was successful, it would pursue some, or all, or any of the employees for recovery of payments, then that is a matter which will no doubt have to be determined, perhaps not here, but elsewhere, depending upon the basis on which that action were taken.

PN723

This Commission ought not begin to make orders of the kind that it is being invited to make, because that really does raise a really serious question about fundamental dis-equality, the very thing that stay orders are meant to prevent. So that on one hand one gets a stay and on the other hand one is penalised for it. Having said that, of course, there are always matter s to be offset when considering stay orders, whether they relate to some payments and not others, or whatever they are, but your Honour would not build into such an order one of the kind that our learned friend has asked for.

PN724

Your Honour sees the orders that were made in the Hunter Valley and they may well, your Honour might think, or some adaptation of them may be appropriate here, but one thing we submit we should be entitled to get and, that is, an order staying the Commission's reinstatement of these people, or the obligation to continue to pay them from this point on. There seems something fundamentally wrong about having to continue to pay them up until the time of determination of the appeal, particularly given what has already happened - the funds which have been created and are held will remain. The IBD would remain. Moneys that they have been paid, they remain having had the use of. Whether any subsequent consequence would flow from that is a matter for another day.

PN725

It can't be an answer - this leads to a second point we wish to make - that in some way the company is estopped from seeking a stay on the basis that if it gets it and if it succeeds at the appeal, it would seek to recover the money. That is a very odd submission because there is no relationship between these parties of a kind which would give rise to estoppel by conduct, much less the other versions of estoppel which might arise at equity - for example ..... estoppel, equitable estoppel. This is not - the company's conduct here does not arise from a course of dealing. The company's conduct here arises from an order of this Commission. The company has been ordered to make the payments. It has not been - it is not open to it to say: we will only make those payments that we've been ordered to make on the basis that we get the money back if we are successful. It would require a variation which this Commission wouldn't give it to get that.

PN726

The position is that if the company makes the payments and it succeeds in the appeal, then, the orders which were made by Commissioner Hodder will be dissolved. They will have never have existed and it is a clean slate. There is no question of estoppel there. Here the company has not held out to these employees that it in a course of commercial dealing will make a payment to them if they do something else. That is not what has happened here. The company has made the payments by compulsion of law, so there is no question of estoppel. Those are essentially - those two reasons, alleged breach of orders, estoppel and thirdly the question of delay and the company's so-called conduct, are the essential reasons why your Honour is being asked to - on the balance of convenience - refuse a stay. Or, refuse a stay as asked. Or, if your Honour is against the respondents on all of those, or any one of them, tailor some sort of stay.

PN727

Really, the question is this: does fairness require a stay and does fairness require some capacity for the employees to continue to receive payment, that is the issue, and the rest of it is just peripheral - quite apart from being wrong. We have not dealt with the material which is largely of emotional content. I don't again say that there may well be much ill feeling and bad blood - that is not surprising really - but that does not govern what your Honour does in relation to the granting of a stay. The respective rights of the parties need to be balanced and as the Full Bench has said in this Commission many times, whether a stay is granted or not requires an over-arching look at what has been happening in the light of what is about to happen and how long it will take to achieve that which must now be done, namely hearing and determination of the appeal.

PN728

May I then move to that matter. What has really been put to this Commission by our learned friend is this. It does not matter what the statute says about how the Commission is to go about its business in determining whether there has been relevant harshness, unjustness or unreasonableness, if there's a finding no matter how he got there, it is unchallengeable and if he repeats it 50 times it is even more unchallengeable. If he breaks up the element into 60 different bits and says: they are all unharsh, that makes it 60 times unchallengeable. That, with the greatest respect, is simply wrong. Section 170JF(2) of the Act says that the ground of appeal against one of these decisions is that it shouldn't have been made.

PN729

THE VICE PRESIDENT: It is an error in deciding to make the order, it says.

PN730

MR WEST: Now, that provision was considered by the Full Court of the Federal Court in Edwards v Judicher. Finkelstein J at 169 ALR 180 said:

PN731

That provision is the equivalent of a general right of appeal.

PN732

Well, it is accepted it is. That really means for the notice of appeal identifying individual elements is really nothing more than a set of particulars. The charge is that it is wrong, it was an error in making those orders. Now, that involves in this case a full scale attack on what the Commissioner did. Our case is, as the notice of appeal makes clear, that he did not conduct an arbitration in accordance with the requirements to do so. He didn't weigh the evidence at all. He accepted what the union said and little else. An analysis of the judgment demonstrates that he rarely, if ever, refers to the evidence and analyses it.

PN733

What the Commissioner did was to pick between one case and the other case. That is not arbitration. That is not judicial decision-making either. It wasn't the black hats or the white hats, it was a question of: what have they respectfully proven in the evidence and what does that demonstrate to me? That process was never engaged. What is worse, in our respectful submission, for the reasons I gave before lunch, it is plain that the Commissioner did not address correctly the statutory injunctions upon him in considering unfairness, etcetera, or unreasonableness and secondly, remedy.

PN734

The cases demonstrate it is not enough just to say: I have considered everything and this is the result, especially as it made worse by the fact that what the Commissioner's reasoning reveals is entirely the wrong approach to the statute. So he has misdirected himself in fundamental legal ways. That brings the house down. It is not a matter of my learned friend saying: well, there are another 68 ways to shore up the result. All that is saying is that he has found the same thing and repeated many times in sub-sets of his finding that this is also unfair, that is unfair and this is unfair.

PN735

All of that process is tainted, inevitably tainted, by his misdirection on the law and the fact he should never have made the orders. Now, we say that that process - that he has misunderstood the selection process. That is a plain ground of appeal. That is not the way - his interpretation of it is not the way that it should have been found. The black list we take on and we say they simply should not have dictated the result. The simplest way into that is to demonstrate his misdirection on each of the relevant jurisdictional points of the statute on which he had to rest.

PN736

If we demonstrate error on the appeal, bearing in mind of course that this is not just - this is not just a broad jurisdictional judgment. The Commissioner was not exercising an entirely discretionary judgment. There were plainly elements of discretion in it but it is of the narrow kind, the focused kind referred to by the High Court of Australia in Coal and Allied, and made even the more clear since in Miller's case in the Full Federal Court. So that this is not an unstructured discretion he had. He had to walk through some jurisdictional boxes and tick them off, and explain how he got there. He does not. He said he has done it but it is plain that he couldn't have by reason of the result at which he arrives and his declaration as to what the tests are.

PN737

So in our respectful submission, this idea that this judgment is impregnable, that leave to appeal would never be granted, is wrong and that is not a conclusion that this Commission would come to. I might just mention one more thing and that is this. My learned friend referred to the evidence of conspiratorial agreements and the like and the fact that people were cross-examined on their credit, particularly Mr Bates, as having been involved in the marshalling of the system which went forward and that that, because it was found to be unfair, in some way feeds into the question of whether the business case was challenged.

PN738

The unions never accepted the business case, that is plain, but challenge it in terms of cross-examining the very people whose decision it was to reduce the size of the workforce and why that was done was not something that was pursued. That is not something we will approach as collateral by using a mirror. That is not a - if you want to say that that business case should be rejected they had to attack it. You don't do that by attacking the credit of the general manager as to whether he abuses his secretary or not. It has got nothing to do with it. Nice man he might not be but so what. The question is: was there a valid business case? In our respectful submission there was.

PN739

It becomes perfectly obvious that there was by looking at the Commissioner's own reasoning as he approaches, almost there and then glances off and he glances off every time because he thought it was unfair and that in fact is the reasoning. Your Honour, they are our submissions. Unless there is something else you wish me to address they are the submissions we put on behalf of the application for a stay.

PN740

THE VICE PRESIDENT: Thank you, Mr West. I propose to give some consideration to the matters that have been raised and will reserve my decision on the matter. Thank you both for your submissions. I will now adjourn.

ADJOURNED INDEFINITELY [3.30pm]