C2001/2221, Transcript of Proceedings [2002] AIRCTrans 1630 (14 May 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT KAUFMAN
COMMISSIONER SMITH

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

10.08 AM, TUESDAY, 30 APRIL 2002

Continued from 8.3.02

PN2556

SENIOR DEPUTY PRESIDENT WATSON: Are there any changes in appearances?

PN2557

MR F. PARRY: Yes, if the Commission pleases, I have lost a leader and now I appear for the appellant, if the Commission pleases.

PN2558

SENIOR DEPUTY PRESIDENT WATSON: Very well, thank you, Mr Parry. Yes, Mr Parry.

PN2559

MR PARRY: If the Commission pleases, the appellant has filed and served two volumes of submissions on 2 April 2002, we have received extensive submissions from the respondents late last week. We have set out our position with regard to that in correspondence to the Commission of 29 April 2002. We note that there was a Commission ruling or direction on Friday to the effect that all matters, further matters or other material should be identifiable.

PN2560

We received correspondence from - on CFMEU letterhead, referring to another argument as it were, it is a letter dated 29 April 2002 received by us yesterday afternoon referring to an argument about the incorporation of the reduction in Hands Award clauses in the contracts of employment. If the Commission pleases, we oppose that issue being raised at this stage and sought to be ventilated in these proceedings.

PN2561

We note that the argument about the incorporation of the reduction in Hands Award clause was dealt with by the Commission at first instance and indeed from paragraphs 10 to 25 of the first decision of Commissioner Hodder, he dealt with the various arguments and the law with regard to this and decided that there was to be or there had been in fact no incorporation of the reduction in Hands Award clause in the contracts of employment.

PN2562

SENIOR DEPUTY PRESIDENT WATSON: Yes, just one moment.

PN2563

MR PARRY: I'm sorry.

PN2564

SENIOR DEPUTY PRESIDENT WATSON: Yes, go ahead.

PN2565

MR PARRY: That was clearly a decision of the Commission with regard to a submission that had been put. We note that there was no cross-appeal raised with regard to that part of the decision, indeed I would say that section 170JF(2) contemplates such a cross-appeal could have been made, it was not, we are now some year after the decision, in my submission, such a new issue should not be allowed to be raised and dealt with at this stage.

PN2566

MR CRAWSHAW: It would rather be a notice of contention than a cross-appeal, wouldn't it, Senior Deputy President.

PN2567

MR PARRY: Well, I'm not sure that the Commission's rules contemplate a notice of contention, that is certainly a procedure that is often used in the Courts, that is if there is an issue that is not determinative of the order parties can put in a notice of contention. My first submission is there is no appeal, that is manifest, no cross-appeal.

PN2568

MR CRAWSHAW: Well, there is nothing for them to cross-appeal is there? They got what they wanted, the finding that determination is a harsh, unjust and unreasonable and reinstate them.

PN2569

MR PARRY: They did but they could have argued, when we filed our appeal, they could have cross-appealed and said: in any event, the proper decision on the proper finding of the facts was as follows:

PN2570

Further, obviously there was no notice of contention.

PN2571

The issue wasn't raised in the first appeal, which I will describe being the one heard in December, it wasn't argued there. In my submission it is just too late now, sorry, in my submission the Commission should rule that that matter should not be allowed to be raised and argued.

PN2572

SENIOR DEPUTY PRESIDENT WATSON: What would occur in the circumstance if the Full Bench found that Commissioner Hodder had erred and quashed the decision and in effect determined the matter for itself. You are suggesting that we should rely on that finding of Commissioner Hodder in that process.

PN2573

MR PARRY: That finding has not been challenged by us in these proceedings. It is a finding.

PN2574

SENIOR DEPUTY PRESIDENT WATSON: It is being challenged now by the CFMEU.

PN2575

MR PARRY: Yes, it is challenged now by the CFMEU, as I submit, 1 year after the decision itself.

PN2576

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN2577

MR PARRY: It is a matter for the Commission. It is a matter that we say shouldn't be raised at this stage. I am not sure how the Commission wants to deal with that, because if the Commission was minded to allow that argument to proceed then we would need to at least make reference to probably consider what has been put below with regard to that argument, we haven't carried out that exercise as yet.

PN2578

SENIOR DEPUTY PRESIDENT WATSON: Yes. Is there anything further on that point?

PN2579

MR PARRY: Nothing further on that point, your Honour, no.

PN2580

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN2581

MR CRAWSHAW: Mr Parry, given that this is an appeal now by way of a hearing and given that we have granted leave to appeal, are we able to preclude the respondent from relying on that argument here?

PN2582

MR PARRY: In my submission, that is a matter within the discretion of this Full Bench to - and it could so do. In my submission relying on the delay and the fact that there were unchallenged findings below, so in my submission the Commission could. Does the Commission want me to proceed further? I'm obviously moving onto other issues at this stage.

PN2583

SENIOR DEPUTY PRESIDENT WATSON: What issues are you moving on to?

PN2584

MR PARRY: Evidence and what is going to happen for the next few days.

PN2585

SENIOR DEPUTY PRESIDENT WATSON: No, perhaps we will hear from Mr Crawshaw on the initial points now, Mr Crawshaw?

PN2586

MR PARRY: If your Honour pleases.

PN2587

MR CRAWSHAW: Obviously there was no cross-appeal because there - your Honour, Senior Deputy President Kaufman says, we were happy with the audit. If the Full Bench is to determine the matter for itself, the Full Bench is obliged to hear all arguments that are put and my friend's suggestion that the Commission isn't so obliged just has no foundation in any principle of procedural fairness. We have never given any indication that we accept Commissioner Hodder's finding on the seniority because of his other findings he didn't really have to decide that point.

PN2588

I am just checking, we had no notice of this point, but I'm just checking and I haven't actually seen this letter that was sent last week either but whether it was raised there, I don't know. We are just checking the first appeal proceedings to see whether we dealt with this point, I suspect we would have said something about what was going to happen in the event that the Full Bench found appealable error but I can't remember exactly what other than I think there must have been an indication because of what subsequently transpired that we suggested that the Full Bench should reconvene in the event that there was appealable error found because that was what the Full Bench says in the decision dated 18 February 2002 paragraph 34.

PN2589

So if we didn't at the proceedings at first - the appeal proceedings at first instance canvas this point, it would have been because we were arguing that there was an appealable error found the matter should come back before the Full Bench to see what should happen next and that would have been the appropriate time to deal with the question of what submission should be put in any re-determination.

PN2590

On the otherhand I think we might have also flagged that that was one of the issues that would have to be canvassed in any re-determination. We will continue to look through the transcript to see what was said on that matter. This is no new issue, the matter was subject of written submissions at first instance by us and my learned friend's client has already dealt with their response to this matter in their written submissions at first instance.

PN2591

Now, my friend needs time to look up the reference in the Appeal Books to their written submissions on the matter, he is entitled to it but I don't think it will take very long and he wants to add to those written submissions orally. In these proceedings he is entitled to do it too, but the suggestion that we should be barred from raising the point is - just has not substance in law or the practice of this Commission.

PN2592

SENIOR DEPUTY PRESIDENT WATSON: Is there anything further on that point, Mr Parry?

PN2593

MR PARRY: No, your Honour.

PN2594

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well, we will consider what has been put to us. To luncheon break, I don't think that would preclude from proceeding immediately. Mr Parry?

PN2595

MR PARRY: If your Honour pleases, the next matter is the issue of evidence. The Commission will have noted that there has been two witness statements filed. In my submission it would be appropriate at this stage to dispose of the witness evidence. I would propose calling Mr Bates, now, before doing that there are two things firstly, I think it is appropriate at this stage to make clear the appellant's position with regard to back pay.

PN2596

The Commission would have noted certain observations in the statements of Mr Barnes regarding the impact of the recovery of back pay on the situation and the position is that in April last year there was a reinstatement order made. There was a partial stay granted but that stay involved the appellant continuing to make payments to the 16 applicants. As the Commission has heard in earlier proceedings, the applicants have not been required to perform work for the respondent.

PN2597

Those payments are still being made to the employees, former employees. We have prepared a chart which shows the amount of payments that have been made. Clearly those payments have been continuing for almost a year now, or just over a year. My instructions are that the appellant will not seek to recover the money paid up from the commencement of that time being in April 2001 to the date of the decision, of course assuming that the decision comes out within some reasonable time and not 2 or 3 years hence.

PN2598

We will make submissions at an appropriate stage about the effect what that non-recovery of the payments that have been made for the last year. The second matter is there has been a statement that Mr Bates put in and we have received a statement from Mr Barnes. The statement from Mr Barnes contains what I will loosely describe as three categories of evidence. The first is an assortment of allegations concerning the families and events that have occurred in Clermont since the terminations.

PN2599

The second category concerns material that has been provided told to Mr Barnes by the other applicants and the third concern material that Mr Barnes asserts about the operations of the Blair Athol Mine at present. Now, I do have objections to the statement of Mr Barnes. The second and third categories of objections are in large part hearsay ones, and relevance ones and I will be asking Mr Bates about those matters. The first category contain a series of sometimes serious, colourful allegations about events that have occurred in Clermont.

PN2600

Manifestly they are hearsay matters, in my submission, they would be irrelevant. However, I would seek at this stage that there be a ruling on at least the relevance of those matters because in the absence of that ruling I would be in a position where I would be asking Mr Bates his versions of those events. Now that will be a hearsay version, it will be from what he has been told by other people. It will be a continuation of the gossip and the rumour that we really don't think assists this Commission in proceeding with this hearing.

PN2601

We don't want to go down that track. We don't see that it is being helpful but it is best, in my submission, that there be a ruling on certain paragraphs of Mr Barnes's statement at this stage, to determine whether we need to get into that area at all.

PN2602

SENIOR DEPUTY PRESIDENT WATSON: Have you identified those paragraphs, Mr Parry?

PN2603

MR PARRY: Yes, I have. Paragraphs are paragraph 15, paragraph 17, paragraphs 18 to 24. I have an objection in respect of paragraph 27 but it is in a different category. I have objections to paragraphs 29 to 105 because they fall into the general category but not the first category if I might qualify that. However within that hearsay collection, there is paragraph 53 and 54 and there is also paragraphs 80 and 89.

PN2604

I indicate that I have other objections to the statement but close parts that I have identified then, fall into that first category which will in my submission, involve us having to give a version of events countered to what is said there, admittedly it will be hearsay and often hearsay on hearsay. It won't be of any assistance to the Commission in respect of those matters. So at this stage I would - when we debate if the Commission was minded to follow that track, I am prepared to present argument on each of those paragraphs as to why it shouldn't be admitted.

PN2605

I would ask that Mr Barnes be out of the Commission whilst that debate is going on and also whilst Mr Bates is giving evidence.

PN2606

MR CRAWSHAW: I don't have any objection to the objection being dealt with now. My friend seems to be suggesting he has got some now and some later let us do all the objections now. There is no reason why Mr Barnes should be excluded while that is dealt with and indeed there is no reason why he should be excluded when Mr Bates is giving evidence because, as will be apparent from his statement, he is the person in the best position to give me introductions in the matter. I perhaps should have also pointed out that Mr Barnes is actually a party in these proceedings, he is not just a witness.

PN2607

SENIOR DEPUTY PRESIDENT WATSON: Yes. Mr Parry, can I ask you this question first before I go to Mr Crawshaw, the statement of Mr Bates, what is that directed to in terms of the appeal, does it go to the finding of harsh, unjust and unreasonable remedy both - - -

PN2608

MR PARRY: It goes to the current state of the operations at the mine.

PN2609

SENIOR DEPUTY PRESIDENT KAUFMAN: That is only relevant to the question of reinstatement, is it not?

PN2610

MR PARRY: Yes, it will only be relevant to that clearly as the Commission would have noted it covers events since the terminations. So it really does go to remedy.

PN2611

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well, thank you. Mr Crawshaw, what is the position in respect to the statement of Mr Barnes, does that go simply to remedy or does it go beyond?

PN2612

MR CRAWSHAW: Yes.

PN2613

SENIOR DEPUTY PRESIDENT WATSON: Simply to remedy and can I ask you, Mr Crawshaw, if you have any general submission in relation to the issues of relevance and hearsay raised by Mr Parry before we go, if we need to, to the particular paragraphs.

PN2614

MR CRAWSHAW: I wasn't quite sure what his objection was, he talked about categories and I lost him after he started talking about categories.

PN2615

SENIOR DEPUTY PRESIDENT WATSON: I understood in relation to this first group of objections that went to hearsay and relevance, is that right, Mr Parry?

PN2616

MR PARRY: That is right.

PN2617

MR CRAWSHAW: Well, I think I will have to hear the objections on that but one general submission that we will make is that - you can see that Mr Barnes has given evidence about the circumstances of other applicants and that obviously done to avoid the expense and time of having 16 people give evidence.

PN2618

SENIOR DEPUTY PRESIDENT KAUFMAN: It does make it hard for Mr Parry to test that evidence, does it not?

PN2619

MR CRAWSHAW: Well, it may but bear in mind this sort of evidence is relatively uncontroversial - the only way my friend can really test it is if he has material instructing him that the evidence given there is wrong. In other words people have been employed for example when Mr Barnes says they haven't and even in normal Courts of law there is an exception - - -

PN2620

SENIOR DEPUTY PRESIDENT KAUFMAN: Just take Mr Linley for a moment, he has unsuccessfully applied for jobs in the coal mining industry and Mr Parry may want to know what jobs he has applied for, whether he has done it by telephone, or in writing in response to advertisements. How can he ask Mr Barnes anything about that and get a useful response.

PN2621

MR CRAWSHAW: Well, that is true, but that is assuming that my friend's got instructions that he has successfully applied or that he has not applied at all.

PN2622

SENIOR DEPUTY PRESIDENT KAUFMAN: He may want more particulars, Mr Crawshaw, he does not need instructions about that to seek to help Mr Linley particularise his attempts.

PN2623

MR CRAWSHAW: We can adjourn this and go to Queensland and call evidence from the 16 applicants if that is what the Commission wants. We were trying to update the situation in the most expeditious manner possible. If there is an objection and this is the first we have heard about it, unless it is in that letter that I haven't seen.

PN2624

SENIOR DEPUTY PRESIDENT WATSON: The letter is said to have been copied to Mr Sleben, I am presuming that has occurred.

PN2625

MR CRAWSHAW: Mr Sleben hadn't received it, that may not necessarily mean that it didn't arrive in his office somewhere.

PN2626

SENIOR DEPUTY PRESIDENT KAUFMAN: It purports to have been sent by a facsimile transmission to a Sydney telephone number 92673198 I don't know if that is the .....

PN2627

MR CRAWSHAW: I'm not seeking to apportion blame, I'm just saying I haven't seen it and as far as I know this is the first time we have been notified of this objection and if it is desired by my learned friend to cross-examine the individual applicants or if it is desired by the Commission to hear from all of the individual applicants, that can be arranged.

PN2628

COMMISSIONER SMITH: Mr Crawshaw, some of the material contained in relation to the applicants other than Mr Barnes, deals with personal circumstances of the applicants families.

PN2629

MR CRAWSHAW: Yes.

PN2630

COMMISSIONER SMITH: What is the purpose of having that material put into evidence?

PN2631

MR CRAWSHAW: It just goes to the general question of the discretion to reinstate if the Commission reaches that point in having decided to determine the matter for itself.

PN2632

COMMISSIONER SMITH: Is that normally a matter which is given a great deal of weight by a member of the Commission in determining whether or not it is appropriate?

PN2633

MR CRAWSHAW: I wouldn't put it as highly as a great deal of weight but those sort of circumstances may be taken into account.

PN2634

COMMISSIONER SMITH: Does it prejudice your case at all if we put those to one side, accepted the propositions that each of these persons are ready, willing and available to attend for duty and dealt with Mr Barns' view?

PN2635

MR CRAWSHAW: Well, this is the problem with dealing with matters in general. I prefer to deal with the specific paragraphs before giving your Honour an informed answer on that.

PN2636

COMMISSIONER SMITH: Well, it just appears to me that some of the matters raised - for example, Mr Parry objects to 29 to 105 inclusive which appears to be all of the applicants that aren't able to be present today.

PN2637

MR CRAWSHAW: Yes, well, some of them are actually. There's three others here. If he wants to cross-examine them - - -

PN2638

COMMISSIONER SMITH: He then deals particularly - for example, the first one that he directs our attention to is paragraph 53 and 54.

PN2639

MR CRAWSHAW: Yes.

PN2640

COMMISSIONER SMITH: Now, they're personal family matters. Are those matters that we need to resolve by Mr Parry asking his witness about his understanding of those or are 80 and 89 matters which we can conveniently put to one side? 80 or 89 is in a slightly different category, isn't it?

PN2641

MR CRAWSHAW: Without a newspaper I - - -

PN2642

COMMISSIONER SMITH: The newspaper articles might have passing interests.

PN2643

MR CRAWSHAW: Well, I think I go back to my original answer, they're probably not matters that you would give a great deal of weight but matters that you would give some weight to in exercising a discretion.

PN2644

COMMISSIONER SMITH: But does any prejudice fall to Mr Parry and his clients if he seeks not to cross-examine or to ask his witness matters about which he has now given notice?

PN2645

MR CRAWSHAW: Well, I don't know whether he wants to ask questions about that. We couldn't be heard to object to him asking questions of the witness about those matters if they're admitted into evidence and Mr Barns' statement.

PN2646

SENIOR DEPUTY PRESIDENT WATSON: Very well. Yes, we will adjourn briefly to consider those matters.

SHORT ADJOURNMENT [10.42am]

RESUMED [10.52am]

PN2647

MR CRAWSHAW: I was just going to raise a further point but it relates to the earlier matter.

PN2648

SENIOR DEPUTY PRESIDENT WATSON: It relates to the earlier - - -

PN2649

MR CRAWSHAW: I've examined the transcript of the submissions in the December proceedings. Under paragraph 2298 on 27 - I'm sorry. I'm referring to the proceedings on 27 February actually. In paragraph 2298 I said this:

PN2650

So what we would submit is the matter should be brought back on for submissions as to the future course of the matter if any error is found. Of course, in that regard ...(reads)... he did not need to make that matter any further.

PN2651

So it is not as though the matter has been raised for the first time.

PN2652

SENIOR DEPUTY PRESIDENT WATSON: Yes, thank you, Mr Crawshaw. Anything arising out of that, Mr Parry?

PN2653

MR PARRY: He did make findings. The submission was bring back the submissions on matters on which he did not make findings. Our submission is a pretty simple one. This is an area he did, if the Commission pleases.

PN2654

SENIOR DEPUTY PRESIDENT WATSON: Yes, thanks, Mr Parry. We have considered the matters raised this morning. We do not propose to restrict the respondent's submissions on the point going to the reduction of hands clause. In relation to the evidentiary matters, the additional evidence goes to the question of remedy. We think the best course is to deal with the issue of remedy at the conclusion of hearing submissions on the question of whether the termination is harsh, unjust or unreasonable. Accordingly we will proceed now to deal with those submissions. Mr Parry.

PN2655

MR CRAWSHAW: Perhaps I should just clarify that I got confused. It was 13 December that I was referring to earlier. I know you have already made the ruling on the matter. It was printed on 27 February by whoever printed this document.

PN2656

SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr Crawshaw. Yes, Mr Parry.

PN2657

MR PARRY: If the Commission pleases, I note that we have provided a fairly comprehensive pair of documents to the Commission already. Now, what we have attempted to do in those two volumes is, in effect, remove the need for the Commission to look at the first number of volumes we put in submission, cut down the material as much as we possibly could, and leave those as the submissions the Commission can go to with respect to the appeal.

PN2658

Now, the two volumes are firstly a volume going through the background at Blair Athol, going through the PER process and going through the selection for redundancy process. That first volume goes through those matters and then deals with the appeal grounds. The appeal grounds are dealt with in various detail and I'm not going to repeat those to the Commission. The second volume goes to the individual circumstances of each employee. Now, we have been provided with the response from the respondents and upon comparing the submissions at first instance we have found that again, the respondents rely heavily on the decision at first instance of Commissioner Hodder and effectively, in large part, repeat the submissions made to the appeal bench in December.

PN2659

Now, that in some ways has made the next task we undertook a little simpler. That is, the Commission will recall on the last occasion that there was an extensive reply that was filed by the appellants. We have prepared such a reply in this case. That reply I have here today, I think at present only two copies of it. I'm sorry, we have more than that. But it is a document which goes through the submissions of the respondents and replies and deals with evidentiary matters and makes other references to evidence and deals fairly comprehensively with much of the material raised.

PN2660

One of the problems in the time is that we can't be absolutely sure that the document is the same in all respects or similar the first time around. So there might be some amendments to the reply that I need to make in the next day or so. But it is a document which hopefully will remove much of the time that I would otherwise have spent dealing with some of the wilder assertions in the respondent's material. Now, I have that document here.

PN2661

SENIOR DEPUTY PRESIDENT WATSON: Mr Parry, what we might do is mark the initial submissions filed by the appellant, the two volumes, exhibit PC1. That is comprised of two volumes: the first dealing, if I can put it this way, with general matters and the second dealing with specific individual respondents. We will mark the reply for the appellant, which you have just handed up, exhibit PC2.

EXHIBIT #PC1 TWO VOLUMES

EXHIBIT #PC2 REPLY FOR APPELLANT

PN2662

MR CRAWSHAW: Can I just say something about this document? I now have the letter of 29 April that was written to the Commission. I note the second last paragraph says:

PN2663

Given the voluminous nature of the CFMEUs submissions, it is physically impossible to review, check and identify issues for response in the submissions in the time available. Further, given the time ...

PN2664

I won't read on. This document seems to belie that proposition that what is said there applies a fortiori to us now having come to the hearing and this document is handed up and we are meant to deal with it. Now, it is not the first time. As the Commission is aware, there is - - -

PN2665

SENIOR DEPUTY PRESIDENT WATSON: There's always going to be a reply submission put and you are going to deal with that. Given the nature of the proceedings of the filed submissions you would have expected Mr Parry or whoever to deal with the matters raised in your submission.

PN2666

MR CRAWSHAW: To reply to what we say orally, yes.

PN2667

SENIOR DEPUTY PRESIDENT WATSON: Well, Mr Crawshaw - - -

PN2668

MR CRAWSHAW: But not to come along here - the same thing happened - there's three appeals of this nature. The Commission wouldn't be blind to that. The same thing happened in the Mount Thorley appeal. They came along on the first day and handed up a document like this.

PN2669

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN2670

MR CRAWSHAW: We had to spend the next few days trying to get on top of the material and the Commission gave us a little time to do that if necessary. Eventually we were able to do it in the time allocated.

PN2671

SENIOR DEPUTY PRESIDENT KAUFMAN: Mr Crawshaw, how late were you in filing your submissions?

PN2672

MR CRAWSHAW: Well, two days as I understand from reading this letter.

PN2673

SENIOR DEPUTY PRESIDENT KAUFMAN: At least two days. I certainly received the E-mailed version of your submissions sometime after 6.30 pm on the eve of Anzac Day, as I recollect. I spent a couple of hours in Chambers printing off your submissions and collating them on Anzac Day so that I could start reading them.

PN2674

MR CRAWSHAW: Yes.

PN2675

SENIOR DEPUTY PRESIDENT KAUFMAN: Mr Parry has only mildly complained about it but in light of your lateness how can you now complain about a reply being given to you now?

PN2676

MR CRAWSHAW: I'm making the same complaint they're making about the difficulty of getting on top of mountainous materials in a short time.

PN2677

SENIOR DEPUTY PRESIDENT KAUFMAN: Perhaps if you'd provided your submissions in a timely fashion, you might have received a reply in a more timely fashion.

PN2678

MR CRAWSHAW: Well, we weren't the only party to provide the hard copy late, for example. We received their hard copy - but I'm not getting into who is to blame. I'm talking about what we are presently confronted with now. I'm not looking to blame anyone for what has happened in the past.

PN2679

SENIOR DEPUTY PRESIDENT KAUFMAN: Are you making an application, Mr Crawshaw?

PN2680

MR CRAWSHAW: Well, I'm saying we are embarrassed by a document of this size being handed to us this morning which we are expected to deal with in the course of the week. But I am not making an application at this time. I note my friend reserved his right or my friend's instructing solicitors reserve their rights or to apply to put on extra written submissions. Depending on what is in this document we may have a similar application.

PN2681

SENIOR DEPUTY PRESIDENT WATSON: Yes, well, I think we will proceed with Mr Parry's submission. The alternative is Mr Parry orally put the submissions in reply rather than in this form.

PN2682

MR CRAWSHAW: I wasn't suggesting anything different. I just didn't want to let it go in without making that reservation of the difficulties we might have dealing with it.

PN2683

SENIOR DEPUTY PRESIDENT WATSON: Yes. We will proceed at this point. If there's any later application we will deal with it at that time. Mr Parry.

PN2684

MR PARRY: If the Commission pleases, in these submissions I propose following this general course: I propose making some general observations about the circumstances leading up to what occurred in mid 1998. Secondly, there is a question of statutory construction that I propose dealing with, that is, the construction of section 170CG(3). I then propose dealing with what flows from the alternatives of either statutory construction.

PN2685

If the reason for termination was redundancy I will point to the business case. That was unchallenged, in our submission, at the time. If the reason for termination was redundancy plus elements of conduct and capacity then we will look at how section 170CG(3)(b) and (c) operate and in that context look at the appeal procedure and follow through the process and the individual evidence for two employees so that the Commission will understand how we say the appeal process meets any arguments under (b) or (c).

PN2686

SENIOR DEPUTY PRESIDENT KAUFMAN: I'm not sure that I follow you, Mr Parry. Are you suggesting that in relation to some of the respondents capacity or conduct of the individual was not a factor and it was in relation to some others or are you speaking in relation to all of them?

PN2687

MR PARRY: I'm speaking in relation to all of them but - - -

PN2688

SENIOR DEPUTY PRESIDENT KAUFMAN: I think you will need to amplify on what you have just said in that case. I didn't follow you.

PN2689

MR PARRY: There is a question of statutory construction with section 170CG(3). The Commission will recall that I think (a) makes reference to a valid reason for termination. I will be submitting, as we have set out in our written submissions, that the reason for termination was that the employees were surplus and there was no work for them. That applied to all those employees.

PN2690

SENIOR DEPUTY PRESIDENT KAUFMAN: Yes, I've read your submissions, I follow that.

PN2691

MR PARRY: In that context we will say that the employees were each told that reason and given whatever relevant opportunity to respond to that reason of them being surplus. That is the first construction. The second construction is that when one looks at the reason for termination, one looks at the reasons for individuals' termination and one says the genesis may well be the redundancy circumstance, but when one selects employees on reasons that include conduct and capacity then the reason may well cover both matters. It may cover redundancy and it may cover elements of conduct and capacity.

PN2692

Now, in that circumstance then we turn to 170CG(3)(b) and (c), as to whether employees were notified of the reasons and whether they were given an opportunity to respond. Now, we will be in that context, of that statutory construction, saying that all these employees were firstly identified as surplus but, secondly, they were selected for reasons related to capacity and conduct. They were told of those reasons in the PER process and the ultimate appeal gave them an opportunity to respond to those reasons. Therefore, when one looks at what has followed for each of the employees, one can see that they were told the reasons and they were given an opportunity to respond.

PN2693

SENIOR DEPUTY PRESIDENT WATSON: Mr Parry, the arguments between you, in a nutshell, perhaps, can be summarised and the respondents say that there was no valid reason related to capacity or conduct, you say that there is no other reason related to the operational requirements but you go on to say that, given that the respondents were selected having regard to their individual capacities or conduct, nevertheless, you will go with matters relating to opportunity to respond and being told of the reasons. Will you be addressing us as to whether at the end of the day there's a practical difference in relation to the differing approaches at the bar table? I'm not asking you to do that now. I just want to know if you will be, if you intend to address on that.

PN2694

MR PARRY: The difference that your Honour refers to, and I will return to later, is really, to what effect one gives 170CG 3(e) because, ultimately we will be saying that if the reason is redundancy then one does not need to - presumably employees are told of that and, (b) and (c) don't operate but there is operation for (e). That may allow to an extent, an examination of the procedure to follow. Now, that your Honour talks about a practical difference. There is a difference in that the legislation at the moment requires if the reason is a specified one, that (b) and (c) operate and that there be consideration given to those. (e) cannot operate quite so broadly. We say (e) would operate differently in a circumstance where there's a selection or a redundancy. (e) would do different work in the current case. So that will be the position that we will take your Honour.

PN2695

Now, I then propose dealing briefly with the black list and the assertion that AWA employees were preferred and CFMEU employees were selected and finally, my proposal was to look at the potential remedies in the event the Full Bench determines that any of the examinations were harsh, unjust or unreasonable. I apprehend from the ruling the Full Bench has made earlier today that somewhere in there we are going to have to call evidence. I'm not exactly sure, but I'm assuming that at the end of the submissions that I make with regard to black list and it will be a matter for the Commission whether it hears that evidence then or at some later time. I will proceed on that basis.

PN2696

If the Commission pleases, the broad facts are well ventilated before the Commission, are simple. An employer formed the view that it had too many employees. The background to this was contained in a statement of Mr Bates, being exhibit PC74. There is a broad chronology and I note that the submissions of the respondents have included a chronology therein. We take serious issue with that chronology. We have included a chronology of our own in reply. It is the last few pages of the reply. It is not a long document and we attempted, as far as it is possible in this case, to deal with what we hoped were relatively normal contentious issues. It is page 122 of that reply, exhibit PC2. The Commission will note from that chronology there was a bench marking exercise. The view formed was that the mine was inefficient with 30 per cent overmanned and that led to the development of a productivity improvement plan and the view formed in Mr Bates' statement was that one of the reasons or one of the areas that could be improved arose from the dressing unproductive work practices and absenteeism.

PN2697

The Commission will also note from the reply and the chronology that there were regular state of the nation addresses to the mine work force commenced in late 1995 and through this process and other processes, employees were told of the need to reduce manning and improve performance and overheads from those state of the nation addresses are attached to exhibit PC74 and I'm not going to take the Commission to those. One of the outcomes of that productivity plan was the PER process and those performance appraisals in the PER process commence from June 1997.

PN2698

For present purposes, over the relevant period, there were three PPRs, from June 1997 through to June 1998. Over late 1997 there was a voluntary redundancy process and the Commission will have noted that a number of the applicants in this case were offered voluntary redundancy packages in late 1997 and also in 1998. In early 1998, the company introduced a new structure and employees were placed in that structure. There were surface employees and a number of the surplus employees were moved into mine services. I think, as best I recall, there were twelve of the current applicants were moved into mine services. Two were already there, two of the applicants were in maintenance.

PN2699

The Commission will also recall that there were proceedings in the Commission in March about that process and they were before Commissioner Potter. He handed down a decision which effectively let the process continue and left that structure in place. In April 1998, it was still the position that the appellant had more employees than it needed. Offers were made to the appellants and others. In June and July, there were still more employees, effectively the voluntary redundancy program had been gone through.

PN2700

There was a position where there had to be involuntary redundancies. The company made an assessment. It was not a PER assessment but no doubt, relied for the large part upon it. A different scale was utilised in this PA assessment. Employees were rated out of five, not out of three, and there were additional criteria. Employees, some 16 employees, were chosen through this process and advised that they have been so chosen and given the opportunity to appeal that and a number of them followed an appeal process and, Mr Bates, the general manager of the mine and in that appeal process the employees were represented by union officials and there was argument and debate, and I will take the Commission to that in more detail, and at the end of that process the 16 employees were terminated and paid redundancy packages in accordance with the industrial instruments.

PN2701

It is our submission, on the evidence, that what the company intended to achieve was a merit based redundancy. They were confronted with the issue of how to select employees from a call, and it should be said here that, I think this in part takes up, Senior Deputy President Kaufman's question, that there was no issue here that the conduct or capacity of these 16 employees of itself would be a reason for termination. Without the overmanning situation that was in place they may well have remained in employment and, of course, the overmanning was not each individual employee's fault. The surplus situation can't be attributed to any particular fault of any particular employee.

PN2702

Now, on a more general note, when a company employer is confronted with an issue where it has more employees than it needs it has a number of options. The first option is, it simply chooses people out of a hat at random without any particular reason. The second is that some objective criterion is chosen, such as seniority, age, but I'm sure that that would probably be discriminatory, colour of one's eyes I think was something that my leader raised last time. No doubt an objective criterion, no particular reason why those criterion relate to needs of the business but they are something that could be used to rank employees.

PN2703

The third option is really to choose those employees who at the particular time don't have a job. Now, it might be the closure of a machine or it might be the closure of a room or it might be the closure of one particular part of the mine. So those employees who are unlucky enough to be there at that particular time are the ones that are chosen. The next criterion could be one that the company chooses which it intends to be in its best interests. That could be criterion which include assessments of skills, attitudes and behaviours, a sort of merit based selection. Now, whichever criterion is chosen there will be harshness and unfairness, that will apply to each; it will apply to a random system, it will apply to an age of seniority system; it will apply with employees who are on a particular job at a particular time and it will apply to merit position.

PN2704

However, this Commission has never suggested that merit selection cannot be used or is inappropriate. Indeed, it would be our submission that sub-selection would appear consistent with the primary objects of the Act, relating as they do to higher productivity and the Commission giving a fair job to the employer as well as the employee. In my submission, when either of those considerations are looked at merit- based selection is probably the fairest of all. Now, of course, the problem is the criterion that are selected and how they are assessed, inevitably it is a subjective exercise. The assessment of skills, attitudes and behaviours are in large part subjective, in some part objective. Here in this case the company conducted such an exercise, it relied, as I submitted earlier, in large part on performance effectiveness reviews which were developed with input from supervisors and review by managers.

PN2705

We say that we don't come here to the Commission and say that the systems were perfect or beyond criticism, they were conducted by men working at a coal mine in the middle of Queensland; it was in the context of a need to reduce numbers; it did not involve teams of psychologists or educators with a set curriculum at an examination; it was a situation where the company had all the time in the world. We submit that on a fair reading of the material the company did the best it could in all the circumstances. Now, that leads to a situation where - - -

PN2706

COMMISSIONER SMITH: Mr Parry, could I interrupt you for a moment?

PN2707

MR PARRY: Yes, Commissioner.

PN2708

COMMISSIONER SMITH: Isn't our task not to search for perfection but to simply decide whether or not those decisions were infected by impermissible considerations?

PN2709

MR PARRY: Yes, your Honour, infected and impermissible, no doubt that assessment will be a consideration but at the end of the day your Honours will have to decide whether they were, and if they were whether that resulted in a situation of harshness, unjustness or unfairness to these 16 applicants.

PN2710

COMMISSIONER SMITH: That is where the difficulty arises. If I take a hypothetical situation, which is always dangerous, but if I said: look, this particular person is really the worst we've got, I'm so glad because it is a union member and I can sack him. Is that an impermissible consideration that overrides the performance assessment?

PN2711

MR PARRY: No, I'm not sure there is anything impermissible in that at all. It is a real issue of cause and effect. One might be happy about the circumstance and one might welcome it but that happiness and welcoming is a consequence and not the cause.

PN2712

COMMISSIONER SMITH; Yes, I follow. If it happened the other way, it would be the cause.

PN2713

MR PARRY: If the employer said I want to get rid of union officials or I want to make the membership of the individual a significant factor in a selection process and use that, then that would be coming at it from the angle the Commission is referring to.

PN2714

COMMISSIONER SMITH; Yes, I follow.

PN2715

SENIOR DEPUTY PRESIDENT KAUFMAN: The respondents do point to passages in cross-examination - I can't remember who where they say the company, the appellant made an admission that it was seeking to reduce the number of CFMEU members. If that's correct, what does that - what affect does that have on the terminations of employment?

PN2716

MR PARRY: I think your Honour will need to be a fraction careful with that because there is two levels to reducing the number of union members or reducing union influence. I am not sure of the quote your Honour is referring to - - -

PN2717

SENIOR DEPUTY PRESIDENT KAUFMAN: If I could be more specific I would, Mr Parry, I can't find it just at the moment.

PN2718

MR PARRY: There is no doubt that Mr McCrea gave evidence that he wanted to reduce the level of union influence. Now, we don't say there is anything impermissible about that.

PN2719

SENIOR DEPUTY PRESIDENT KAUFMAN: You say it is permissible to seek to do that?

PN2720

MR PARRY: That is - well, it is permissible and it is not impermissible, that is awkwardly put but I think in our written submissions we have referred, in our reply to the AWU v BHP case before the Federal Court where the company had put large amount of material - there was large amounts of material before the Court saying the company wanted to reduce union influence, wanted to reduce union involvement in its business.

PN2721

Now, they are not impermissible goals. what would be impermissible is if they become significant criterion affecting the selection process of the actual membership whether a person is a member of the CFMEU. We say that that presumption really assumes that those supervisors that were conducting the PER exercise and Mr Yeates, at the end, were coming at it from the angle of manipulating the figures to achieve the goal of getting rid of union members.

PN2722

Now, that is - each of the employees[sic] has denied that, very strong - each of the company managers. What is put against it is the evidence of Mr McCrea where he says that the company wants to reduce union influence. Now, in my submission, putting those two factors together, doesn't result - one does not lead to the other.

PN2723

SENIOR DEPUTY PRESIDENT WATSON: It is more complicated again, in this case, isn't it with the proposition being put that the presence on the black list had some relationship to union membership and that affected the PER process as well. So there were a number of variables said to be active.

PN2724

MR PARRY: Yes. Yes, that is so, your Honour. The black list, we submit, infected much of the reasoning at the first instance. That is why, in this case, we have put in an appendix which sets out the black list and the references to it and the arguments about the list. It does not seem to lead anywhere in this case but if you go to excerpts from transcript about what was said, it is best - I am not going to read it to the Commission but there are large slabs of transcript about the black list. Our position is, a fair reading of that evidence shows Mr Yeates developed these lists around October 1997. Assessments were made at that stage of people that would go into the new structure, organisational charts.

PN2725

Assessments were made, in part, on PERs that certain employees were to go onto the black list. The black lists were lists, Mr Yeates' evidence says, that were given that colour. Now, I am sure if Mr Yeates had his time again, they would be crimson lists or yellow lists but they were called black lists. Now, those lists, we say, represented worst performing employees. The assertion against this is people were placed in those boxes because they were union members or because they wanted to maintain collective agreements and so forth.

PN2726

Now, that - Mr Yeates denies that. Mr Yeates has given his version. Again we have included Mr Yeates evidence. He was cross-examined for 2 or 3 days about this, I am not going to take the Commission to slabs of it. All we can say is that it is there. A fair reading of it seems consistent with Mr Yeates evidence in itself, that is, that these were lists attached to organisational charts on which people that weren't allocated positions in the new structure were.

PN2727

Now, over time those lists changed and some people went off and some people stayed on. I think 12 of the applicants were on those lists. I think there is four that were not or there is no evidence that they were on such lists. It really is then an argument - no doubt, the 16 applicants are members of the CFMEU. No doubt they did prefer to maintain their collective arrangements. Then the issue is whether that caused - it is a cause and affect debate, whether one follows the other and what inferences can be drawn from those facts.

PN2728

We say there is the evidence of Mr Yeates. The evidence of various managers. The union point at the lists themselves and what happened in June. We say one does not follow from the other. The argument against us is that it does. So our submission with regard to that is if one reads the evidence carefully, our submission the black lists and their connotations are really nothing more than the attempts by the company to create a structure and to create a structure that was introduced in March and were instruments used along that path. They were the results of the assessments. They were not the drivers. The argument against us is that those lists drove the process. We say they reflected the process. So that is our position with regard to the black lists.

PN2729

SENIOR DEPUTY PRESIDENT KAUFMAN: While you are interrupted, Mr Parry, there is a passage that I had in mind, referred to at paragraph 298 of the respondent's submissions in this matter, evidence of Mr Yeates. If it is not convenient for you to deal with it now, do not do so.

PN2730

MR PARRY: In the respondent's submissions, your Honour?

PN2731

SENIOR DEPUTY PRESIDENT KAUFMAN: In the respondent's submissions, yes. Volume 1, paragraph 298.

PN2732

MR PARRY: I am not sure what our reply says with regard to that, if anything, your Honour. Your Honour, I am not denying that appears in the evidence. The issue - - -

PN2733

SENIOR DEPUTY PRESIDENT KAUFMAN: I am more interested in what your suggestions are but rather than commenting on it now, perhaps you can given consideration to it.

PN2734

MR PARRY: Yes, if your Honour pleases. I proposed turning them to the question of statutory construction, which was the issue I averted to earlier. Your Honours, this matter is dealt with, in our submissions, at paragraphs 83 to 97. Now, I don't propose going to those. I think that commences on page 76 of our working submissions where we deal with this particular argument. Now, the argument, in simple terms, focuses on the word "reason". Now, we submit that the issue is what is the reason for the termination.

PN2735

An exploration of the word "valid" does not really take the matter anywhere. I think the Macquarie dictionary refers to a reason being a ground or a cause. Our submission is that the reason here or the cause of the terminations was operational, that is, the employees were redundant. Now, ironically, for every other purpose, these particular applications have been treated as retrenched or redundant. Ironically, if one goes, as the Commission will have noted, these employees were paid extensive redundancy pays. I don't think anyone has suggested that they were not entitled to them but if one goes to the P&E Award, I think contained in volume 8 to the CFMEU's exhibits and clauses 16, that deals with redundancy and I think clause 16.3.1 provides, except where 16.3.2 applies, when terminations occur due to redundancy, the employees terminated are entitled to severance pay entitled to 1 ordinary week pay for each completed year of employment. 16.3.2, an employer is not liable for the payment in 16.3.1 if within 7 days of termination of employment of employees employer obtains or causes to be made available for the employee work.

PN2736

Now, that is severance pay. Redundancy pay is set out in 16.4.1 and that provides, except where 16.4.3 applies, where redundancies occur due to technological change, market forces, diminution of reserves the employees terminated are entitled to retrenchment pay. Now, it is my submission simply that for every other cause, these employees were treated as though they were terminated for redundancy reasons and no-one has suggested that they are not entitled to redundancy pay, retrenchment comprising severance pay and retrenchment pay.

PN2737

To think that one could front, in an award interpretation case and say the reason that these people were terminated was not redundancy but because they were selected for conduct or capacity, they are not entitled to redundancy pay, really would, in my submission, be an absurd approach. So our position is that when one looks at the reason, one should look - it really becomes a question of causation. What has caused these people to be terminated? What has caused that is the fact that they were redundant.

PN2738

Now, I hear it being said against us, and I will take the Commission to decisions of this Commission, that there can be two reasons - there might be other reasons, might be a combination of reasons. Well, the Commission will be well familiar with all those cases on section 344, the predecessors of 298 and the references to operative reasons. When legislation refers to "reasons" or a "reason" the Courts have said it should be the operative reason. The operative reason here, in my submission, is the redundancy.

PN2739

Now, again, it will be said, well, there are a number of Commission decisions that are against that proposition. Well, we say that they are wrong. The most recent decision is a decision of Smith v Paragon, a decision of the Full Bench for which I will - I have copies of for the Commission.

PN2740

SENIOR DEPUTY PRESIDENT KAUFMAN: Commissioner Smith has resumed breathing.

PN2741

MR PARRY: Sorry, your Honour.

PN2742

SENIOR DEPUTY PRESIDENT KAUFMAN: Commissioner Smith has resumed breathing.

PN2743

MR PARRY: If the Commission would excuse me.

PN2744

SENIOR DEPUTY PRESIDENT KAUFMAN: While you are looking for that, Mr Parry, what emphasis do you give to the words "related to" in section 170CG(3)(a). It is not for reasons of redundancy or reasons of capacity or conduct, it is reasons related to those matters.

PN2745

MR PARRY: Well, they are very broad words, the words "related to". I think once you get into that part of the 170CG(3)(a), it really takes away from the earlier part of it which talks about a valid reason for the termination. So what it requires firstly is an assessment of what was the reason for the termination.

PN2746

SENIOR DEPUTY PRESIDENT WATSON: Does that terminology preclude there being more than one valid reason? Is not it a question of there has to be a valid reason otherwise that would be a factor, considered in the context of others, which would support a finding of harsh, unjust, unreasonable?

PN2747

MR PARRY:

PN2748

Well, there may well be more than one reason but it would have to be an operative reasons, it would have to be the cause, or a cause. Now, here, as we have said, these employees would not have had their employment terminated on the grounds of their conduct or capacity. It wasn't for the reason for their termination. That issue only came to be considered because they were redundant. They were surplus. Now, once one looks at the - - -

PN2749

SENIOR DEPUTY PRESIDENT WATSON: Well, they weren't redundant, it was determined that they were the appropriate employees to be made redundant having regard to the performance issues, attitude, etcetera.

PN2750

SENIOR DEPUTY PRESIDENT KAUFMAN: Yes, or to use the words of the actual reasons related to their performance or conduct.

PN2751

MR PARRY: Yes, well, it really comes - yes, but the capacity or conduct on this statutory administration that we advise was not the reason for the termination. The reason - its a cause and effect argument.

PN2752

SENIOR DEPUTY PRESIDENT WATSON: It is a reason for the particular termination or the particular employee, is it not, because prior to the terminations the company had a situation where it required and - I will just put this as it comes, but a 30 per cent reduction in Manning, went through various processes, numbers were reduced, and it was left to the point where it believed it required 16 less still employees and then it utilised a process to determine which of the 16 remaining employees were those to be made redundant. Prior to that process it hadn't determined that employees X, Y and Z were redundant, it determined that it had 16 too employees and then entered in to a process to determine which of the employees should be made redundant.

PN2753

MR PARRY: Yes, that is so. It then comes down to what - how do you read the word "reason". We say the reason that ultimately these employees were terminated is because they had been selected or whatever for redundancy. Now - - -

PN2754

SENIOR DEPUTY PRESIDENT KAUFMAN: Well, that is where you draw the distinction. The reason is the operational reason and the selection has to do with that conduct or capacity. Is that how you break it up?

PN2755

MR PARRY: That is one way of articulating it, your Honour, yes, and as I submitted earlier, that selection only came about because of the situation the company was in, but these employees were ultimately terminated for redundancy. They were described as redundant, they get redundancy pay. TO say that they were terminated because of their conduct or capacity really is inconsistent with the way everybody has treated them. Now, does the Commission have a copy of this decision of - not Commissioner Smith, might be related but it is a print PR15674.

PN2756

COMMISSIONER SMITH: You left off the 9 in front of it, Mr Parry, PR915 - - -

PN2757

MR PARRY: I'm sorry, your Honour. Now, in some ways this decision sets out some of the previous authorities, it is a recent decision. There is much on inference and so forth contained therein which I don't take the Commission to it, really the consideration of this issue starts at paragraph 71 which is, I think, on page 17 of 26 and perhaps appropriately that says:

PN2758

The application of 170CG(3)(a) a redundancy situation is not without difficulty.

PN2759

PN2760

SENIOR DEPUTY PRESIDENT WATSON: Somewhat of an understatement.

PN2761

MR PARRY: Yes, it is an understatement but it is at least a recognition that there is difficulties with it, indeed in some ways and I think it takes up selection process and if I go back to the submissions I made earlier assuming people are redundant assuming there's a surplus situation, and what happens if they are selected by lot, is the reason for their termination that the ball fell wrongly? What if they are selected because of the colour of their eyes, is it that an accident at birth, that is because of a physical position, in my submission clearly people that there are surplus numbers when people get made redundant, the selection may be one step, but the reason is the other. I think that takes up the point your Honour made earlier.

PN2762

Now, Smith v Paragon I think it then starts with two decisions of the Commission. The first is one we have referred to in our submissions, Windsor Smith v Liu, there is paragraph 73 an extract from the reason. Now, it is suggested there that the first part of it deals with whether there was a valid reason for termination is only one of four separately specified matters which the Commission must now have regard to, further on down in the indented paragraph it said:

PN2763

We take the true position so that where employment is terminated on redundancy grounds it is a question of fact whether the employees selected for redundancy were selected for a reason related to the operational requirements of business for a reason related to the employees' conduct or for reasons of both kinds.

PN2764

PN2765

Well, can I say there, the inherent illogicality of that is that if you are not going to be selected for redundancy because of your capacity or conduct you are selected for redundancy presumably because the business has too many employees and you are redundant to the needs of the business. So in a way there can only be one reason for a redundancy termination, that is, the operational requirements of the business. So it is this sort of argument that does not seem to have been dealt with by these Full Bench decisions and Windsor v Liu goes on in the next part and says:

PN2766

Where the reason for selection is related to the capacity or conduct of the employee or includes such a reason no opportunity is given to the employees to respond to that reason.

PN2767

That is a factor which the Commission must take in to account. Now, we submit that when one looks at the real reason, and it is a question of ascertaining that, the real reason can only be operational requirements. Now, in a curious way in the present position, the Commission will recall that, I think, two of the employees, Mr Walsh and Mr McGuiness were in maintenance and maintenance was restructured, there was no position for them. There was then an assessment made whether they could be found positions in production.

PN2768

Now, I'm not sure where the selection on the basis of capacity and conduct can really relate to those two employees. They were, in a classic sense, surplus to the requirements of that particular part of the business. So in any event we would say that for those two employees there can be no suggestion of conduct or capacity. As to the other employees they were in Mine Services and Mine Services was clearly, extensively over-staffed. Now, the reasons they came to be in Mine Services were the subject of proceedings before Commissioner Hodder in March 1998.

PN2769

They were, in my submission, there were far too many employees in Mine Services for what it needed. So we say the reason there is not their conduct or capacity but the needs of the business. Now, the extract from Windsor v Liu goes on and I think it goes over the page - - -

PN2770

SENIOR DEPUTY PRESIDENT KAUFMAN: But isn't that a little bit simplistic, with respect, Mr Parry, they were in Mine Services because based on their ranking they couldn't be found positions in the reorganised structure, as I apprehend the facts, I may be mistaken, but isn't that why they were moved to Mine Services because on their performance rankings they were at the bottom and the people on the bottom moved to Mine Services?

PN2771

MR PARRY: That is so, yes, but I'm not sure that makes the analysis simplistic - - -

PN2772

SENIOR DEPUTY PRESIDENT KAUFMAN: No, but there is more to it than what you just said - - -

PN2773

MR PARRY: Yes, there is more to it, there is 5500 pages of transcript and about 20 volumes of exhibits more to it, but I am here dealing with the construction of valid reason within the context of the Act. Now, over the page it said:

PN2774

That section 170CG(3)(a) distinguishes between valid reasons related to operational requirements and valid reasons related to the capacity or conduct of the employee.

PN2775

Then it talks about in the case of employees who were selected on the basis of operational requirements and not because of their capacity or conduct. It is not apparent why an objective assessment of skills would be necessary. Well, that may be true, but in any redundancy situation there is going to have to be a selection mark. Now, we say, that one would never select on the basis of operational requirements, that is, in itself a nonsense. You don't select on the basis of operational requirements. Operational requirements create the reason that you have terminate.

PN2776

Now, the next Full Bench decision dealt with here is the Lockwood Security v Sulocki decision which commences at page - there are extracts from 76 and 78 sets out large parts of that decision. Now, it starts I think in paragraph 78 which sets out paragraph 19 and halfway through paragraph 19 set out:

PN2777

However, the Commissioner, consistent with principle and correctly in our view, held that while operational requirements may provide a valid reason for staff reductions. They do not necessarily provide a valid reason for the retrenchment of particular employees.

PN2778

PN2779

Well, that must mean, if that be right, that I am not sure what ever circumstance would ever arise when the reason in a redundancy situation is operational requirements. It goes on:

PN2780

The Commission must be satisfied upon the facts as they appear before it that there is a valid reason for termination of the employment of particular employees who have been selected for retrenchment.

PN2781

PN2782

Well, that was what the old legislation said, that there had to be a valid reason. The new legislation does not say that. The new legislation in 170CG says that whether there is a valid reason or not is a matter that can be taken in to account by the Commission. So the Commission does not have to be satisfied of anything. That is simply an incorrect statement of the law. The next part deals with valid reason for termination and refers to a valid reason for the dismissal of a particular employee being sound, defensible, or well founded. Well, that does not advance the matter.

PN2783

Ultimately, the conclusion seems to be reached in paragraph 79 that number one, while operational reasons requirements may provide a valid reason for reducing the size of employers' work-force they do not necessarily provide a valid reason for the retrenchment of particular employees. Now, in my submission, that proposition as it is described simply does not read properly with 170CG(3). In my submission, in any redundancy situation where employees are selected, on that analysis it will never be a reason for termination related to the operational requirements of the business. That means those words have very little to do.

PN2784

SENIOR DEPUTY PRESIDENT WATSON: In relation, on your submission, to a redundancy situation?

PN2785

MR PARRY: That is right, they just won't work, unless you close down the whole business.

PN2786

SENIOR DEPUTY PRESIDENT WATSON: Well, is that problematic, they would have other work to do and would have work to do, as you say, in a situation where the whole business was closed down?

PN2787

MR PARRY: In any other situation apart from the total closure of the business, those words have no work to do. The minute you select those words on that approach, don't have any work to do.

PN2788

SENIOR DEPUTY PRESIDENT KAUFMAN: What about in the contest of closing a particular part of the business, the maintenance department, and contracting out your maintenance, the personnel in your maintenance department have their employment terminated for reasons relating to the operational requirements of the business, do they not have work to do?

PN2789

MR PARRY: But why are they selected?

PN2790

SENIOR DEPUTY PRESIDENT KAUFMAN: I am sorry?

PN2791

MR PARRY: Why are they selected?

PN2792

SENIOR DEPUTY PRESIDENT KAUFMAN: The employees in the maintenance department, the maintenance department is closed. All of the employees in that department because that department ceases to exist lose their employment.

PN2793

MR PARRY: But the company makes another decision on the way, inherent in that is another decision, that is, one, closing the maintenance department, I have more employees than I need, these employees can't be used somewhere else. I can't use these employees somewhere else - they are making these employees, their skills are not suited for me, slot them in to production, therefore I'm just going to get rid of all the production employees.

PN2794

SENIOR DEPUTY PRESIDENT KAUFMAN: You say that is related to their capacity, in their capacity?

PN2795

MR PARRY: That is right, it is automatically related to their capacity because there is another step being taken in the middle of it.

PN2796

COMMISSIONER SMITH: Mr Parry - - -

PN2797

MR PARRY: So can - - -

PN2798

COMMISSIONER SMITH: I'm sorry - - -

PN2799

MR PARRY: I'm sorry, Commissioner.

PN2800

COMMISSIONER SMITH: I can think of a circumstance where the proposition you are advancing then troubles me, if you take the example where you close a maintenance department and in a traditional sense you could say: well, we have contracted out the whole of the maintenance department, we will terminate those persons for redundancy, that might be then dealing with the operational requirements. You then decide that one of those persons in maintenance is a long distance relative that you would really like to keep in the job, so you dismiss a production employee and put the maintenance person through 6 months training and make them a production employee. Does that mean you will dismiss the production employee, he is simply dismissed on the grounds of redundancy?

PN2801

MR PARRY: Yes, yes. Perhaps the best way to illustrate this is say, seniority. The other side - and name it with seniority, the way to go. We have a redundancy situation, we have more employees than we need, we have to select 10, we chose the shortest serving. The 10 shortest serving. Why are they terminated? Are they terminated for redundancy reasons or are they terminated for capacity or conduct reasons, or is there simply no valid reason for their termination? Is that the position? That we - if we had selected 10 on seniority grounds the union would say you didn't have a valid reason for that because you selected. That means it wasn't redundancy. It wasn't for operational reasons and it wasn't for a reason related to conduct or capacity therefore there is no valid reason for the termination. That is where it leads. We say that must be nonsense. If an employer cannot even terminate, cannot even stand up in the Commission on the applicant's argument and have a valid reason for termination the statute must be being read wrongly.

PN2802

Now, the decision in Smith and Paragon goes on and sets out reasons why the argument that I have advanced can't be right. In my submission the - what is set out on the next page is really not a valid approach to the interpretation of legislation. The first argument in page 83 is that section 170CG(3) refers to the employee. Therefore it must be read in the singular. Now, therefore it can't have any operation in respect of groups of employees being terminated.

PN2803

Well, my submission with regard to that is it has never been a tentative statutory interpretation that you read singular as being singular in the absence of fairly clear intent. It has always been the position that the singular includes plural. That is consistent with the interpretation of legislation facts. Secondly, it has always been - well, it is an unfortunate fact of industrial light that retrenchments for operational reasons rarely involve one or two employees. In a practical sense they often involve multiple employees. That is simply a fact of industrial life.

PN2804

To read legislation as necessarily meaning it must relate to the single employee does not, in my submission - it is insupportable. The second propositions talk about the capacity or conduct of the employee and talk about whether employees can be terminated for capacity or conduct reason. Well, I am not sure that advances the argument. It may well be the employees are terminated for reasons which relate to both their capacity and their conduct. That does not answer the question of what is the reason for the - can there be a reason related to operational requirements.

PN2805

Finally, the other arguments deal with the reason for termination being a valid reason. That talks about it being capricious and not being capricious or spiteful or prejudiced. Well, that really is a different argument. Valid reason has nothing to do with this. We are looking at the word reason. Finally, there are arguments about proscribe reasons. I think the Commission - I think Commissioner Smith on the last occasion said - and I think it follows from questions really, what if you chose people because of their union membership?

PN2806

What if you chose them because of their union member? For redundancy. That is you went through a redundancy process and you chose them for that reason. On my argument they would be - there would still as a matter of fact be a redundancy. That would be the reason for the termination. That is why (e) is there, number 1. Number 2, that is why CK is there. That circumstance is a circumstance covered by the Act. The Act clearly deals with that.

PN2807

The legislation recognises that there can be prohibited reasons or factors that are prohibited. 170CG(3)(e) will allow that factor to be taken into account and there are other parts of the legislation which will allow that to be dealt with. So we - our contention is that there have been other decisions of this Commission. There is a - the decisions, indeed, of Smith - of Windsor Smith v Lockwood are inconsistent in their own way in that one is on a different point that seems to go further than the other.

PN2808

In my submission, when confronted with this unclear authority of other Full Benches it is the responsibility, in my submission, of this Full Bench to conduct a proper statutory construction exercise. Now, we submit if that was conducted the Commission would form the view that these 16 employees were terminated for a valid reason related to the operational requirements of the employer. Now, that was a reason - - -

PN2809

SENIOR DEPUTY PRESIDENT KAUFMAN: Mr Parry, again if it is not a convenient time to deal with this don't but when should we - or when should a Full Bench of this Commission refuse to follow other Full Bench decisions? Do we have to form the view that it was wrong, freely wrong or is it enough if we form a different view? Speaking for myself I would be interested to hear your submissions and have regard to any authorities you may have on when a Bench of the Commission or a member of the Commission should not follow other decisions of the Commission?

PN2810

MR PARRY: I might take that on notice.

PN2811

SENIOR DEPUTY PRESIDENT KAUFMAN: Yes.

PN2812

MR PARRY: If the Commission pleases. Our position is that there was a reason the employees were notified of that. Now, the employees were terminated we say for operational requirements. No doubt in the lead up to that termination there was a process of selection gone through. We are not saying the Commission should simply ignore that. Those are matters that can be weighed up in section 170CG(3)(c).

PN2813

It goes back to a point that Senior Deputy President Kaufman raised. As it currently stands a redundancy selection that relies on looking at capacity and conduct if you link that into 170CG(3)(b) and (c) it raises the bar. It makes it much harder for an employer because there is a number of decisions of this Commission that talk about procedural fairness and then what happens is that (b) and (c) get treated the same way in a redundancy situation as they do when the capacity or conduct was the operative reason for the termination. The theft, the assault, the poor performance perhaps and that elevates those factors we say inappropriately.

PN2814

COMMISSIONER SMITH: Mr Parry, can I ask you to go back to your earlier statement so that I understood - your earlier submission. You say that if somebody is terminated for the operational requirements of the enterprise that then is the valid reason and that is the end of the matter but you - I thought you went on to say that the basis of selection might be considered under 170CG(3)(e), did I understand you to put that?

PN2815

MR PARRY: That is what I said, Commissioner, yes.

PN2816

SENIOR DEPUTY PRESIDENT KAUFMAN: When you are looking at 170CG(3)(e) in relation to the selection process would you not have regard to whether the employee was given an opportunity to respond as is set out in subsection (c) of that section and if it related to unsatisfactory performance whether the employee had been warned about that unsatisfactory performance as set out in subsection (d) of that section?

PN2817

SENIOR DEPUTY PRESIDENT WATSON: In short would there be any practical difference when an assessment is made in all the circumstances of the case?

PN2818

MR PARRY: Well, there would be a practical difference. 170CG(3)(b) and (c) are really weighing up that reason - are really considerations that the Commission has to have regard to obey in the context of a normal termination, if I might use that expression, the operative reason for the termination. Now, this gets into all those decisions on procedural fairness. If you are terminating an employee for that reason you have to provide him with the particulars of what he has done wrong and give him a fair opportunity to respond.

PN2819

When one is dealing with a retrenchment and selection for redundancy my submission is you look at it and you can look at it as a relevant matter but it isn't elevated to a matter that the Commission must have regard to and must give significant weight to with all due respect. This Commission - - -

PN2820

SENIOR DEPUTY PRESIDENT WATSON: Well, it is a matter that Commission must have regard to. Any other matters that the Commission considers relevant.

PN2821

MR PARRY: Yes, but - - -

PN2822

SENIOR DEPUTY PRESIDENT WATSON: They may well - and those considerations may well outweigh each of the others and collectively the others.

PN2823

MR PARRY: But the exercise the Commission will be looking at under (e) is a broader exercise.

PN2824

COMMISSIONER SMITH: That is what troubles me. I don't see how (e) could ever arise in your - from the primary position you advise because if you used (e) to try and overcome your primary position as I would understand your submission that would be an inappropriate use of (e).

PN2825

MR PARRY: If you used (e) simply substituting (b) and (c) and importing (b) and (c) in that would not be consistent with the statutory scheme because then you would be looking at the reason in the wrong light.

PN2826

COMMISSIONER SMITH: Yes, but - that is as I understood your proposition but if you find operational requirements then that is the end of the matter. What troubles me then is what other matters would you consider relevant if you simply draw the line from operational requirements. I can't see any work that that would do because you have decided that it is for operational requirements therefore there is a valid reason. What other matters would be relevant?

PN2827

MR PARRY: What other matters would be relevant under (e)?

PN2828

COMMISSIONER SMITH: Yes, on your - if I accept your primary proposition, namely that once you have decided it is operational reasons then I can't think of the work that (e) would do.

PN2829

MR PARRY: The legislation is structured differently than it was under 170DE of the Industrial Relations Act. The Commission has to make an assessment of whether a termination is harsh, unjust or unreasonable. It has to have regard to five matters. If the Commission forms the view that there was a valid reason related to the operational requirements of an employer's business that is not on my submission conclusive of whether a termination is harsh, unjust or unreasonable. There still may be other factors or other matters that are relevant to that termination which for some reason would make it harsh, unjust or unreasonable.

PN2830

SENIOR DEPUTY PRESIDENT KAUFMAN: They would depend on the circumstances of the case, would they not?

PN2831

MR PARRY: Yes, they would.

PN2832

SENIOR DEPUTY PRESIDENT KAUFMAN: Can I take you to another dangerous hypothetical. Take a redundancy situation of an employer who is a real person not a corporation who employs say six people. There are three positions that are made - that become redundant for valid operational reasons. The employer is familiar with the work of each of the six people. In those circumstances would it be necessary for the employer to give each person an opportunity to understand why that particular person was being selected for redundancy or would it be open to the employer to say: I know my workers.

PN2833

Out of the six I know that these three are the worst workers that is why they have been made redundant. I didn't need to give them an opportunity to be heard on that. Do you go that far in that circumstance to say that in those circumstances you don't have to look at factors such as those contained in subsection 3(c) and (d)?

PN2834

MR PARRY: Well, I am concentrating on (b) and (c). In that position my submission would be one of the employees makes an application alleging the dismissal is harsh, unjust or unreasonable. The employer would come to the Commission and say: look, I had operational requirements. I had a valid reason under (a). The Commission would then say: well, how did you select the employee? The employer would then say: I know my people - looking at the scenario your Honour painted.

PN2835

Now, that is a matter the Commission could consider relevant. It could be taken into account. The Commission might say: well, he knew his people, he can make that assessment. There is no reason why the dismissal is harsh, unjust or unreasonable.

PN2836

SENIOR DEPUTY PRESIDENT KAUFMAN: Despite the fact that he didn't give employees - a particular employee an opportunity to respond to a reason related to that employee's conduct or capacity?

PN2837

MR PARRY: That is exactly so. That is exactly so because let us look at the other side. Let us look at the other side as - almost the way this case was run. This is a fellow running a small business, six employees as your Honour has postulated. He says he has got to get rid of three people. He has been running it for 10 years. He knows them all. He knows that one gets in late sometimes. He knows that one is a bit sloppy on his work. He knows them all personally and well.

PN2838

He has to reduce the numbers. He makes the assessment your Honour referred to and does not tell them upon the basis on which he is making that assessment. It is just his assessment. He comes to the Commission. Now, upon our opponent's argument the employee should have been notified of each and every reason. That is they each should have been given particulars of when they came in late, which equipment they didn't work on properly, what damage they did, what argument they had in the coffee shop two years ago.

PN2839

That is - they would be notified of each of those matters. Then they have to have the opportunity to respond to each of those matters. Now, this man in this shop or this man running this business has not on my scenario done any of that. What would be said against him is: well, you don't satisfy - when the Commission has to have regard to matters you didn't notify the employers of that reason. You didn't give them an opportunity to respond.

PN2840

They must be very persuasive - that denial of procedural fairness must be a very fundamental reason why this was a harsh or unjust or unfair dismissal. I can hear the argument, now. Now, in my submission that cannot be right. The Commission must be able to say: well, look, I hear what you are saying under (e). That is a reasonable explanation for dismissal. The terminations aren't harsh, unjust or unreasonable.

PN2841

But you would end up on the alternative with that sort of fine exercise of allegations, particulars, dates and times which many employers indeed most, would not follow or do.

PN2842

COMMISSIONER SMITH: I suppose, Mr Parry, that brings me back to my question. I want to understand in my own mind what precisely it is you put at issue for us to consider as opposed to other Full Benches conclusions and as I understood what you put at issue before us was that if the employer can demonstrate that there was valid operational requirements namely - there was a redundancy and there is no sham about it but that provides the valid reason and there does not need to be an inquiry as to the nature of the selection, how people were chosen or any of those sorts of matters because a redundancy is a redundancy to the extent as I understand your argument, that they are impermissible reasons for selection, that is dealt with by the statute and is not a matter for the exercise of discretion. That is why I have trouble in understanding no other matters would be relevant and why you would elevate (b) to dilute the first argument that you postulate?

PN2843

MR PARRY: Because the statute 170CG(3)(e) refers to the four particular matters and then refers to any other matters. Now, I can't simply say once there is a valid reason that is the end of the matter. I think your question originally said that is the end of the matter, well, I can't say that is the end of the matter because of the way the statute is now. It does talk about having regard to any other matters the Commission considers relevant. Now, we say in the termination there might be other relevant matters but when it comes to the reason, we don't need to go through the matters in (b) or (c).

PN2844

SENIOR DEPUTY PRESIDENT KAUFMAN: Well, either way you have to go through the matters in (b) you have to have regard to whether the employee was notified of the reason whatever the reason is.

PN2845

MR PARRY: Yes.

PN2846

COMMISSIONER SMITH: It is more (c) and (d) isn't it, Mr Parry?

PN2847

MR PARRY: Well, (b) and (c) refer to the reason and the response to the reason. Now, in my submission, the reason is operational requirements, employees were told that. Now, they could respond to that reason, I don't know what they could say I suppose, practically they could say: I don't believe there is a valid operational requirement and that leads to the material on the business case that we have presented in our - that is why we have put that material there.

PN2848

We didn't understand it to be challenged, all but faintly, that there was a valid operational requirement. It has not been said against us that we should have structured our business to keep the 16 employees there but employees were certainly told of the reason as to the operational requirements. So it is really, I think (b), (b) we say they should be notified, we say they were.

PN2849

SENIOR DEPUTY PRESIDENT WATSON: Mr Parry, your construction seems to separate the termination from the selection of an employee to be terminated to be made redundant. What would be the situation on your construction in circumstances where 16 employees were made redundant and the applicant's were able to establish that there was an operational requirement made out on the evidence for a termination of 15 but not 16, what would the Commission do in relation to a valid finding as to valid reason in those circumstances? Now, that seems to arise from the separation of the redundancy as distinct from the reason of selection of employees for redundancy, it just seems very artificial to me.

PN2850

MR PARRY: On that scenario there is a valid reason for the termination of 15 but not for 16?

PN2851

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN2852

MR PARRY: Therefore one of the employees was terminated when there was not a valid reason.

PN2853

SENIOR DEPUTY PRESIDENT WATSON: Which one?

PN2854

MR PARRY: Well, that is right, which one? Is it seniority, I don't know, which one. How does one select? I suppose one looks at whatever matters the Commission considers relevant.

PN2855

SENIOR DEPUTY PRESIDENT WATSON: So the finding would be there is a valid reason in relation to 15 but not in relation to 1 and I don't know which is which.

PN2856

MR PARRY: Well, it depends I suppose if the 16 have made application or not, or one of them has made application. No, that can't be right, 16 have gone, there is argument before the Commission and it is found by the Commission that there were operational requirements for 15 to go but not 16?

PN2857

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN2858

MR PARRY: The issue is then which one stays? Well, I suppose the Commission has to make an assessment taking into account all relevant matters under (e) probably that is where (e) gives itself work to do. I don't know how the Commission would select in those circumstances. I suppose that would be a matter of argument in that case, I don't know.

PN2859

COMMISSIONER SMITH: Mr Parry, is it a fair summary of the way in which you put this aspect of the case that - you say that when the termination is related to the capacity or conduct of the employee or employees, that the Commission must have regard to the matters in 170CG(3)(b), (c) and (d) but whether the termination is related to operational reasons it will depend on the circumstances, whether or not the Commission has regard to factors of that kind. Is that the difference between the way in which the section operates and the two circumstances?

PN2860

MR PARRY: Yes.

PN2861

COMMISSIONER SMITH: Thank you.

PN2862

MR PARRY: It really does take away the requirement to have consideration and presumably to make findings, I think, I can't be absolutely sure of this, but I think there are decisions in this Commission that say that the Full Benches either have to consider and make findings about (b), (c) and (d). I would say that that is not a requirement, it does not need to make such findings, it is a weighing up consideration.

PN2863

The option against this is that there is an alternative construction that is, I think, in my submission, the Lockwood submission. My submission is incorrect, perhaps the Windsor v Smith decision. This was an alternative submission, might be the more appropriate construction, that is there can be multiple reasons. There can be combinations of reasons and that would be that there can be a valid reason for the termination related to the capacity for conduct and that valid reason is also related with the operational requirements of the employers undertaking.

PN2864

But the complication is, of course, that in this case, as I submitted earlier, the reason related to the conduct or capacity is not the justification for determination, we are not saying any of these employees' capacity or conduct was such that of itself it would have justified determination of the employees. Now, when you have got multiple reasons on this construction it really is a matter of weighing up (a) to (e). Now, none is conclusive or determinative. Now, I think there is a decision of the Full Court of the Federal Court and the extract is in, I think the applicants have included it in their submissions in paragraph 224 on page 119. Now, that refers to, it is Crozier and the matter of applications for writs of ..... I am ..... against the AIRC 2001 FCA 1031.

PN2865

And there the Full Court of the Federal Court said:

PN2866

By virtue of paragraphs 170CG(3)(b), (c) and (d), the Full Bench was required to have regard to aspects of procedural fairness accompanying determination. This it did as its reasons for decision record. The Act does not in subsection 170CG(3) or elsewhere require the Commission to give any want of procedural fairness conclusive weight. It is for the Commission to determine what weight it will give to such a matter, bearing in mind all the circumstances of the case.

PN2867

Now, it is important to go on with that quote because it goes on and says:

PN2868

In this case the Full Bench not only took into account the matters referred to in paragraph 170CG(3)(b), (c) and (d), but also under paragraph 170CG(3)(e), the further fact that notwithstanding the procedural deficiencies Mr Crozier would have been aware that his employer was unhappy with his performance and that it might be assumed that he knew that his employment would not continue indefinitely without the improvement in his sales performance at 152, the Full Bench acted within its jurisdiction in adopting this approach and would detect no jurisdictional hearing.

PN2869

Now, that seems to recognise this balancing up approach whereby you balance up the procedural matters with, what I might submit is a fairly realistic proposition where an employee was aware that his employer was unhappy and was aware that his employment would not continue without an improvement in his performance, that that awareness is a very significant factor to weigh up against perceived procedural deficiencies. So what follows from all of this in the present case is that one needs to look at the opportunities employees had to respond to a reason derived from the selection process in June and July.

PN2870

That brings on our submission into focus, the appeal process before General Manager Bates. Now, from this, we say, a fair reading of the evidence shows that these employees were well aware of, to use the terms in Crozier: the employer was unhappy with the performance, that raised issues about aspects of it and the employees knew of the allegations, if I can put it in that phrase, against them. Now, it is not a case of pleadings, or particulars or us making these submissions at any particular act, fact or circumstances would have itself in any sense justified the termination. If one follows one of the employees through and perhaps choose one, is Mr Crichton. Now, the Commission will have in our volume 1 on page 356 the position with regard to Mr Crichton.

PN2871

THE SENIOR DEPUTY PRESIDENT: Mr Parry, are you likely to take long with Mr Crichton?

PN2872

MR PARRY: Yes. Well, not - - -

PN2873

THE SENIOR DEPUTY PRESIDENT: Yes, well, perhaps we will move out ..... opening there and perhaps we can resume after a luncheon break at 2.15?

PN2874

MR PARRY: As your Honour pleases.

PN2875

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

LUNCHEON ADJOURNMENT [12.43pm]

PN2876

RESUMED [2.17pm]

PN2877

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Parry?

PN2878

MR PARRY: If the Commissioner pleases, the Commission has opened before it page 356 of our appeals submissions dealing with Mr Crichton. Now, I can hear it being said: Why Mr Crichton, as that involves opening another big folder, and that is the union's submissions? It is unfortunately not a numbered page but it is the unions deal with the individual submissions as well. It is the response in respect of Mr Crichton. I can't help the Commission with numbers, I've printed mine off the E-mail and it does not have numbers on it, it just has - so I can't assist the Commission with where it is.

PN2879

THE SENIOR DEPUTY PRESIDENT: Yes, just bear with us one moment. Just tell us where it comes in, proximity to Mr Kelly?

PN2880

COMMISSIONER SMITH: It is alphabetical, isn't it, Mr - - -

PN2881

MR PARRY: It is alphabetical. Yes, it is after Mr Betteridge.

PN2882

THE SENIOR DEPUTY PRESIDENT: Yes, bear with me, thank you.

PN2883

MR PARRY: If your Honour pleases, the Commission will note that the union have put in a submission in respect of Mr Crichton. At the bottom of that page, next to the number 2 it says:

PN2884

As the employer contends that he was objectively assessed as being the lowest performer at BA and for PEO1 he pursued an appeal with production manager, Yeates and superintendent Keough. Mr Crichton provides a convenient vehicle to confirm how the employees made out their cases as follows.

PN2885

So that makes Mr Crichton a convenient place, as far as we are concerned as well, and I will return to that document after dealing with our submissions. So to return to the employer appeal submissions, page 356.

PN2886

I don't want to go through each and every number or paragraph but simply show what sort of material exists in respect of Mr Crichton. Firstly there was the, on that page, there was the notice of intention to retrench. He received this notice and he received details of his score and it was nine out of forty. The next part is where, and it is consistent across the various respondents, he was asked whether the first full criteria were fair criteria to assess mine workers. He says, effectively, yes. Then it goes to past performance. In respect of past performance the first was safety, on page 358 and the evidence was there was a significantly high number of safety incidents and other employees - that is (a) - and the test of (a) is, he didn't deny involvement in the incidents, didn't lead any evidence to suggest they hadn't occurred. (b) had been observed on numerous occasions reading the form guide during safety meetings and smoking outside meetings. (c) Observed on a number of occasions smoking in a Toyota which he admitted smoking in the cabin of Toyotas on the odd occasion.

PN2887

Next, he refused, over the page, to wear PPE safety equipment and (e) he had reluctance to wear seat belts while driving vehicle so if Colin said he had full safety record. As to teamwork, the next item, the evidence being set out the top of page 360, his reactions to other people's views, not talking through jobs, not really a team player in summary, (b) reluctant to participate in toolbox meetings and safety meetings and that is continued in 898 with a refusal to regularly participate. Over the page, under the heading: skills, the issue came one of the skills incident was, at the bottom of the page, reversing a front-end loader into the high wall, causing severe structural damage and admitting the incident was his fault involving a misjudgment on his part. He was asked about that, he said he never denied it, he said it was mis-judgment due to tiredness and 12 hour shifts.

PN2888

The next heading was on page 363: personal effort - about time-keeping, not putting in, which is a general one and future requirements and I'm not again - the top of page 363: team leadership and membership qualities. At the bottom of the page, Mr Campbell's observations in the PER: Gabby needs supervision. These are abstracts from PER, these are what was put to the employee over this process, that concerns the employer had. Admitted some of them are generalist, like they refer to on a number of occasions, but they are setting out what the concerns of the employer was.

PN2889

Now, the issue sometimes raised is whether the supervisors were in a good enough position to observe the behaviour and with respect to Mr Crichton, that appears on page 367, in paragraph 19 where Mr Campbell was asked about the first PER and it wasn't suggested that he wasn't the right person, at the top of the next page. Mr Duncan, another assessor, not questioned. Mr Murchison was questioned about whether he was in a position and that evidence is set out. Then there's these other factors that are often thrown in about being a union member and in respect of the - and remember here we are dealing with a selection for retrenchment - 923, Mr Yeates. Paragraph 923, there is no evidence to support the suggestion that the respondent was selected for redundancy on the basis he was a union man and indeed, Mr Yeates had no knowledge really of his involvement in union affairs, and so forth.

PN2890

The next argument raised sometimes is that the employees didn't understand the importance of the PER process and that evidence is on page 369 and 370 and indeed in paragraph 926, Mr Crichton admitted he was aware during 1997 at the time of the first PER, of the importance of performance and that merit was the criteria on which redundancies would be offered at the mine. So we say he was aware of it. Now, the next matter sometimes raised is the voluntary retrenchment process and that is dealt with on page 371. Mr Crichton received the offer of a voluntary retrenchment on a number of occasions. They are set out on page 371.

PN2891

Then, he was one of those that was advised that the appellant intended to retrench him and he was given an appeal right. That is, he was to appeal that, if he wanted, to the general manager. He was sent the details of the notice of intent and given a letter which, true to his intention, what he should do in respect of that appeal process. Those documents that he was sent, contained in the second volume, volume 2 of the employers and their appendices and it is in tab 22 and tab 23. Tab 22 sets out the categories he had been rated in. Tab 23 sets out: the guidelines for the appeal against retrenchment and attached in tab 23 is a document which sets out matters that the employee can raise, for example, in respect of that appeal.

PN2892

Now, the submission we make is set out on page 372 that he received this material and Mr Crichton chose not to fill out this sheet prior to attending the appeal and there was a meeting with Mr Bates on 14 July 1998. We have evidence of what occurred at this meeting from three sources. Firstly, we have Mr Crichton's own evidence of this. We have Mr Barker's and Mr Barker's is set out also in the volume 2 in tab 1.

PN2893

At paragraph 16 of that, is his version of the appeal in respect of Mr Crichton. Now, this is important. In Mr Crichton's appeal, Mr Crichton referred to his scores in respect of safety and said that had never been spoken to about any breaches of the PER. So his defence isn't: I didn't do it, his defence is: I did it but no-one spoke to me about it at the time. Mr Yeates replied that he had been observed by himself and the foreman smoking in vehicle, in the crib hut. Mr Crichton said that Mr Yeates had never spoken to him about smoking.

PN2894

He said that he believed the PER scores were personal. Mr Crichton also asked by it was when he possessed 18 skills that he scored a one and people who possessed on the truck skill received higher scores for skills. Mr Yeates' only answer was it was a matter of judgment. It is not as though this employee, knowing the allegations about safety and the allegations about performance, has denied them. He has come along and in effect said: You didn't raise these with me at the time.

PN2895

There is also Mr Bates' statement with regard to what happened here. Now, that is set out in paragraph - exhibit PC74, which isn't in the material before you so if I could hand up the first part of the witness statement of Mr Bates, which is exhibit PC74. Now, that is not all of PC74. The Commission may note the procedure adopted by the Commissioner below, was that all the statements made by a witness were put in the one exhibit so PC74 is actually about four statements. All I have handed up is the first.

PN2896

Now, he refers to the - there is Mr Crichton's version - paragraph 126:

PN2897

During the appeal process Gabby stated that this was all personal, had nothing to do with his performance ...(reads)... either now or in the past.

PN2898

The one other piece of evidence, if I might call it that, is the document he actually filled out. That is also in volume 2, at tab 9. This is the document he is putting up to give the example and rebut the issues and what does it say, it talks firstly about previous performance and as best I can read it it says something like - somebody has written: Gabby believes this is personal between - Mr Bates has written that - this is personal between somebody - Dermott Rocco - Darren Rocco - no personality problems with Murch and then there is references in it to smoking, Toyota, spoke at safety meetings and so forth. That is the document he brought - - -

PN2899

SENIOR DEPUTY PRESIDENT KAUFMAN: Is this something that alleged is a contemporaneous note of what was said at that appeal meeting, is it?

PN2900

MR PARRY: It was filled out in the meeting by people that were there at the time. Mr Bates wrote on that document. So it was a document that wasn't fulfilled in by the employee, Mr Bates has written those notes.

PN2901

SENIOR DEPUTY PRESIDENT KAUFMAN: Well, that is what the heading would seem to suggest: Employees actions and examples raised in the meeting. When I looked at that document, I took it to be a document that was filled out by Mr Bates or by somebody at the meeting, not to be a document the employee was suppose to take into the meeting with his comments on it. Is that a correct understanding?

PN2902

MR PARRY: What happened was, if one goes to the - if you have that tab open before you, tab 22 shows the note that employees got and with that - you might go to tab 23. Your Honour might note paragraph 5 of that tab - they got this attached sheet: you may like to fill in the attached sheet prior to the day. It is 6 and 7 ways why you think the rating should be higher, give examples of behaviour or actions in any of the categories that show performance was not taken into account. There is notes taken and so forth.

PN2903

Now, this appeal process, and I think our submissions say, Mr Barker was present, experienced union official, Mr Barnes was present and it says Mr Meagher was present, in paragraph 937. I do not think - that can't be right. I think at least Mr Barnes and Mr Barker were present. Now, it was on the next page of our submissions, page 373, Mr Barker was - an extract of Mr Barker's evidence in paragraph 939 and you will see in the second paragraph:

PN2904

You had plenty of opportunity to say what you wanted to say about the assessment to each employee ...(reads)... wanted raised.

PN2905

Now, that is a summary of the evidence. Now, what is said against us appears in the submissions of the CFMEU. It starts off with that part I took the Commission to. Then is set out on page 2 a recitation of the ranking lists, the coloured lists and general allegations about absence of fairness, inaccuracy, none of which relate to Mr Crichton except perhaps on page 3. It is said there, about a third of the way down the page, in particular under the heading of: Manipulation:

PN2906

The employer's general appellation such as the respondent had difficulty ...(reads)... class of generality.

PN2907

Well, they were substantiated. There was evidence about them. The criticism there is they are not specific enough

PN2908

The next argument is about the disproportion number of CFMEU award employees as compared to AWA. Now, nothing, from here on, specifically relates to Mr Crichton under that heading, apart from the fact he was a member of the CFMEU, presumably, and not subject to an AWA. He was on the black list, as it were. He was in that list of people. Then we go onto the general allegations about the secret lists and general matters that don't relate at all to Mr Crichton until we get to page 7. These are the arguments against what happened. Mr Crichton didn't get feed back on a regular recurring and timely basis. This is at the bottom of page 7:

PN2909

The employer did not even raise its allegations during the PER review periods at any stage with Mr Crichton.

PN2910

That argument is during the review period, these issues weren't raised. That was his evidence. Over the page, there was no counselling of him and he wasn't told that reported safety incidents he was involved in would be taken into account. So it is not the position that these issues weren't raised or he wasn't told about them. The debate against Mr Crichton is during the period of the PER he wasn't told about these issues at the time.

PN2911

Under the next heading on page 8: Not specific enough about performance issues. Well, this is the argument that the fine detail was not kept. That is, the allegations that were made about safety, the allegations about team work, the allegations about the lack of co-operation in the meetings are never denied. It is just said the allegations weren't specific enough. The next argument, page 9, are under a heading: Employers failure to have documented evidence of performance discussions. So it is said there isn't documents.

PN2912

Again, it is not denied. The performance issues aren't denied. Capacity and conduct issues aren't denied. This is a procedure issue. These are procedure arguments. The argument over the page, page 10, about the arguments, failure to wear mandatory PPE, issue about safety glasses and seat belts, Gabby chose not to follow the Mining Act or company policies. This is said to be - this is misconduct allegation and the Briginshaw approach is apposite.

PN2913

So that is what is thrown up. We have to meet the Briginshaw standard because these are misconduct allegations. Well, in my submission, that is patent nonsense. It then goes on and deals with, again, the heading: Discrimination and inaccuracy, inconsistency, bias or manipulation. It is said that there was such in him getting 9 out of 40. Over the page, there is this debate, page 28 - paragraph 28, I am sorry, on page 12. He met expectations in the safety sub criteria and in an overwhelming majority of cases and as such he should have got two instead of one.

PN2914

Then it goes on that in some areas he should have got two instead of one or three instead of two. Now, this is, remembering that we are not here debating whether he did any of or engaged in capacity of conduct issues but how he should have been rated in respect of them. The next page, 13, safety. The employer in trying to justify this rating attempts to rely upon conduct or capacity allegations. First, the respondent was involved in a significantly higher number of safety incidents than other employees. Well, that is not contested in these submissions. It is just said there is an arbitrary and capricious use of reported safety matters. One is not linked to Mr Crichton at all. It is said he admitted a fault, it does not take the proposition anywhere.

PN2915

Also on page 13, secondly, the smoking and refusing to wear PPE and seat belt allegations. The argument is not that he didn't do this, the evidence of Mr Campbell was there wasn't any record, he couldn't remember the time or the place and he hadn't issued a code of conduct record. The next heading is: Personal effort and it is said:

PN2916

The employer, in trying to justify this rating attempts to rely upon conduct or capacity ...(reads)... see the reply above.

PN2917

Well, I have taken you to the reply above. Skills, the next page, well, that involves an argument about the number of categories he was recorded in as having skills. Not the performance level of the skills but simply whether it was a box that could be ticked in the guidelines.

PN2918

Team work, similarly, on the next page, there is reference to PER2, the respondent had difficulty co-operating with co-workers about the allocation of work on night-shift allegations or a criticism - well, again, these are matters that are not denied but there is a different spin on it. The next page, and I am not going to take - ongoing pages, in a similar sort of vein. Then, on page 20, we get to the employer's secret lists and this, indisputably, Mr Crichton was on, in that box, which had above it, black lists, people to go.

PN2919

Then we get to credit and reliability on page 22. How that bears on things, we don't know. Jones v Dunkel, this is the sort of material that was put before the Commissioner. Then the argument about, under the heading, on page 23, So called general manager appeal and PER appeal process, Mr Crichton did appeal PER1. Then it has, sort of at the bottom of the page, the rather abstruse comment: in a way - I am not sure what "in a way" means but it usually means that he actually didn't - he did ask Yeates and Keogh to substantiate the allegations made against them by Mr Campbell, he asked for proof that he was in breach of company policy. His challenge and explanation were not accepted.

PN2920

The submissions for the CFMEU don't go to what happened in the appeal or the opportunity he had, they simply say it was never explained how his score out of 40 had been determined. Well, we submit that it had. It said that the so called appeal to Mr Bates was management going through the motions. It is impossible to appeal something you do not understand. Well, let us just stay with that for a second. Where is that evidence? Where is the evidence that Mr Barker didn't understand or Mr Crichton didn't understand?

PN2921

So that is Mr Crichton's story and it is asked that we are meant to ignore the capacity and conduct matters and we are meant to ignore the opportunity that employees had to address those matters when they came before the decision-maker in this debate. It is a useful process and I will do it for one more employee. I'm certainly not going to go through the full 16. But I then had to select another one. I might be criticised for Mr Rogers, I don't know. Mr Rogers - he scored 10 out of 40. He is on page 321 of our submissions. Again got the letter, he was told the score, he received those other documents. He's got no criticism of the criteria used, on page 322.

PN2922

There's evidence given about his past performance - that is on page 322, safety issues, not dissimilar to Mr Crichton: not following guidelines, not wearing PPE safety glasses and hard hat, not recording defects in the diary, not following PPE guidelines after being counselled, not being pro-active. The Commission will see that that is a reference to the first statement of Mr Rogers' attachment B, they are the PERs that are attached to the original evidence of these witnesses.

PN2923

The next page, his failure to properly assess work areas, walking around the mine without a hard hat. He was advised his safety performance was poor, four loss time injuries in a year were cited as evidence of this. He attempted to explain this by saying, "They were pissy little things." Well, we are not saying they're earth shattering or life threatening necessarily although they may well be, but they are significant matters. They are safety issues. We are not denying them. The respondent isn't denying them. He is discounting them.

PN2924

Mr Yeates refers to, in paragraph 739, where Mr Rogers is having a smoke and the cable has tripped him - tripped up by the cable and had a day off work. He was advised that that behaviour was not meeting expectations. Mr Clarke failed - this is 740 - to acknowledge there was a problem with safety. Mr Yeates says that this employee had the worst loss injury time record he had ever seen at the time he had been employed at the mine. Teamwork rating - this man was given a teamwork rating under the PER system. That is on 324. Lack of patience, dealing with change, not assisting others, criticising others, not recording problems.

PN2925

The Commission will note at about the seventh dot point down:

PN2926

His failure to participate in his second PER and failure to otherwise seek feedback.

PN2927

Below that:

PN2928

His lack of belief in the PER process and his lack of interest in improving his productivity as illustrated by his unwillingness to unquarrantine his loader skills.

PN2929

The skills - the next page - there was a rating given to him for not utilising all his skills: reluctance to show urgency, lack of flexibility in using skills.

PN2930

Now, these are matters that were brought to his attention. It goes on that these matters were brought to his attention. The next issue is: were the people supervising him given an adequate opportunity to observe his behaviour. That appears on page 328. There was a Mr Martine, Mr Brown and - that is on paragraph 758 through to 762. Now, in respect of criticisms of Mr Brown, the Commission will note, 762, he was offered the option of having his PER interviews conducted by Mr Thompson rather than Mr Brown. He didn't take that up. So the people who carried out the PERs can hardly be criticised now on that ground.

PN2931

The next part is the same as the earlier part, that is, he knew that the appellant intended to downsize on the basis of performance and merit. He knew that PERs were a part of that process. On page 330, voluntary retrenchment process, he received a voluntary retrenchment and received offers on three occasions. Now, the next part is his opportunity to respond. This opportunity was the appeal process. Now, Mr Yeates gave evidence that the contents of the letter - that is, the intention to retrench letter that I've taken the Commission to - was discussed with each respondent in the production department, including Mr Rogers. The criteria was set out. He was given a sheet. He didn't feel the sheet out prior to attending the appeal.

PN2932

As it says on page 332, he was represented by Mr Barnes and Mr Barker. His argument was that there was a personal conflict between him and Mr Yeates. There was no objection to the substance and contents of the content. Perhaps finishing off this document - he was asked about whether he was given the opportunity to raise allegations. He said he was. Mr Barker has given evidence about this. Leaving that to one side - which was in volume 2 - Mr Barker's paragraph 21, this is what Mr Barker said about that appeal process:

PN2933

At Mr Rogers appeal, Mr Rogers said he had been told by Mr Thompson it wouldn't matter if he scored 12 on his PERs, that Mr Rogers score would be knocked down ...(reads)... even though he didn't have to under the Blair Athol clause 20 agreement.

PN2934

SENIOR DEPUTY PRESIDENT KAUFMAN: What page are you at, Mr Parry?

PN2935

MR PARRY: I'm sorry, 220.

PN2936

SENIOR DEPUTY PRESIDENT KAUFMAN: Thank you.

PN2937

MR PARRY: I'm simply reading the paragraph of Mr Barker's statement in respect of the appeal. About half way through that:

PN2938

I believe Mr Bates' comment shows Mr Rogers was adversely considered in retrenchment selections because he had ...(reads)... for having an opinion which was different to that of the company.

PN2939

Now, the document of the contemporaneous notes, I think they have been described, are in tab 18. These are some of the notes - I'm not saying it is all the notes because there are another set of notes kept. In reference to the hard hat incident it has got: not carrying a watch, haven't you got something better to do all day and a belief that he is in the top 200 employees.

PN2940

Our position is this: there's another 14. We started off with Mr Crichton because it was said to be a good way to start. The union seemed to put that forward as an appropriate one. Fine, we are happy to rely on what happened with regard to Mr Crichton. Mr Rogers is simply added in to show that whilst we rely on Mr Crichton of course it is not that different. These employees were given PERs. They were told of problems with their performance. In respect of Mr Crichton and Mr Rogers there were various safety issues - not wearing hard hats, not wearing PPEs. There were also problems about involvement in meetings, either not attending, bringing the form guide, being outside.

PN2941

These allegations, and I will call them allegations, are with the subject of evidence by supervisors that prepared the PERs. We accept that there aren't particulars in the legal sense of what happened each day, the time of day, when it occurred, where it occurred and who else was present in the room. Indeed, I don't think we could ever possibly meet that standard. But, in each case when the general allegations are made the argument put back to the company isn't: "No, that didn't occur". It is rather: "You didn't record it properly. You didn't tell me at the time." Well, that might be the case, it might not be the case. No doubt it varies in respect of all the employees.

PN2942

But by the time the decision for retrenchment came around, to adopt the sort of words that we used in the Full Federal Court case I took the Commission to earlier, these employees knew that they were being selected because of concerns about their conduct and capacity - I will use that - of which they were very well aware. They were well aware before this appeal process what the issues were that had been raised against them, in a general sense. They were given an opportunity by the company to go to the general manager, Mr Yeates, and say, "That's wrong, that's wrong, that can't be right."

PN2943

Now, we have made submissions about this I think in our volume 1 at page 95 and in our reply in paragraph 170. But I do say at this stage that we gave an opportunity that meets the requirements, if we need to meet them, of section 170CG(3)(b) and (c). We also meet (e). These employees were given the opportunity to respond. Now, that does not mean that it is conducted like a court case. It means the employee is simply given that opportunity to respond.

PN2944

The response here was personal. That might then appear. Alternatively it is: "I wasn't told about this at the time. It wasn't raised with me then." But these employees haven't come along and said, "It is all a total pack of lies. Both of these employees that I've taken the Commission to - their approach was, "I might have done it but it's not enough." Now, these employees were represented by outside union officials, represented by the local ..... president. They were told before that process what was happening, what they had to do. It cannot on any test be described as an unfair or inappropriate process.

PN2945

The reason I've spent some time on it is because it appears nowhere in Commissioner Hodder's judgment. It is not analysed or treated in any respect. In my submission, it is an important matter for this Commission to weigh up in the assessment of 170CG(3)(b) and (c). We say if the construction is that part of the reason was conduct or capacity, we have given the opportunity for employees to meet that.

PN2946

I now propose moving on to the argument that the selection - the reasons were unrelated to conduct or capacity. That is, notwithstanding what I've taken the Commission through, somehow it wasn't the safety record of Mr Crichton or Mr Clarke. It wasn't their attitude to meetings or teamwork but for some other reason. The sort of reasons we have had put forward are the black list, membership of the CFMEU, not signing an AWA. Well, the black list no doubt permeated the decision of the Commission and indeed all the company's actions were seen through the prism of the black list.

PN2947

In my submission, this Full Bench, when conducting its task or looking at the evidence and conducting an analysis of the evidence of Mr Yeates, will see what the black list is, how it developed and how it was used by the company. There is no reason to disbelieve the evidence of Mr Yeates. There is no reason to disbelieve the evidence of the supervisors who made the assessments originally that they filled in their PERs genuinely and on the basis of what they had in front of them. There is no evidence to support a suggestion that the supervisors who did the PERs were influenced and intended to put effect to a black list of employees.

PN2948

The other reason advanced in these submissions is membership of the CFMEU or signing an AWA. It is said that there were disproportionate numbers of people on AWAs and disproportionate numbers of CFMEU members who were retrenched. Well, that involves an analysis of the whole retrenchment process. But perhaps it is appropriate to start with what the signing of an AWA actually meant at Blair Athol. Now, often the signing of an AWA involves employees agreeing to work different hours, to work more flexible hours, such arrangements. Those AWAs cannot be said to relate to performance or skills.

PN2949

The position at Blair Athol was rather different. The AWAs that were signed there had a much broader effect and indeed the union - I'm sorry, the applicant's submissions have in part identified this when they say what the effect of signing an AWA was. That appears in their submissions on page 161. Now, it starts with a proposition by the union, and it is in 293, that AWAs got better results typically due to changing the statutory entitlements and obligations when you compare the AWA document to the clause 20 award, and over the page on 162, this is what AWAs gave up.

PN2950

Now, I will return shortly to the use of the phrase statutory rights and obligations but they refer there to the replacement of the housing bonus with temporary agreements. Well that has got nothing to do with work performance. The replacement of the clause 20, that does. No quarantining of skills, that does. No agreement was needed to employ contractors, or on the issue of security of employment. That goes to whether employees accept contractors or not. In my submission, that is something that could relevantly be taken into account in the assessment of work performance.

PN2951

Retrenchment and seniority lists will apply. That can't be said to relate to work performance. Staff or tradespeople will be able to operate dozers, trucks, train loading, etcetera. In my submission, that could. Perhaps it is appropriate at this stage to look at the clause 20 agreement. Now, I have a copy of that. If I could hand that up to the Commissioner, it is an exhibit. It is exhibit CFMEU 52 but rather than have the Commission trawl through the exhibits, I have got a copy to hand up. Now, this was an agreement put before the Commission in 1995 and ratified in 1995.

PN2952

The Commission is probably familiar with the making of agreements under the P and E Award. One of the things with this agreement led to is what is called quarantine skills. That appears on page 4, under the heading: 8 Production Work Log, and the work model is said in paragraph 30, to consist of two levels, level A and level B. Level A will apply to all current employees who are willing to be trained in any of the work areas skills as outlined in Appendix 1. Such employees may be required to hold up to twelve site skills at any one time. The company may decide to change the mix of skills held by an employee, a) at the introduction of this agreement if skills held are outside the agreement, b) at the time of moving to a new work area, c) any other time by agreement with the employee.

PN2953

The employee and their coordinator shall if necessary, determine which skill or skills from outside of their work area should be quarantined. If an agreement cannot be reached between employee and coordinator, then the training committee will need to be involved. What quarantine skills effectively meant was that employees who say: I don't agree to change my mix of skills. I insist on keeping the skills that I have and had at the commencement of the introduction of this agreement. Now, that is fine but the agreement does not prohibit an employee agreeing. It just says: an employee can agree. So employees can agree. If they sign an AWA this overrides this and presumably the AWA operates such that they can't go back and quarantine their skills so the consequence of signing an AWA is that the employee can exercise a broader range of skills.

PN2954

SENIOR DEPUTY PRESIDENT KAUFMAN: You can also do that under this agreement, under clause (c), without signing an AWA.

PN2955

MR PARRY: You can do it without signing an AWA but your Honour will have noted when I took you to Mr Rogers, the reference to him quarantining his skills. Now, what that meant was that he said: I want to quarantine my skills. That is I don't want to exercise any skills outside the work model, as per this agreement. Now, that is fine. That is his business, but where it comes to an assessment of skills, in my submission, a company is entitled to rate an employee that agrees to not quarantine his skills, higher. Obviously it can be put and the union - sorry, the applicant has put it against us that that means a person has chosen to rely on an industrial instrument is being rated lower than somebody else who has not chosen that course. In my submission, that is not a proper way of looking at it. That instrument does not require an employee to quarantine. It is an option the employee has.

PN2956

So if employee, either under an AWA, or under the collective agreement, choses not to quarantine his skills and to chose to adopt a broader working model, in my submission, an employer is entitled to recognise that broader range of skills and the acceptance of that when it comes to assessing skills. Why I have gone to that, is because that - the argument against us I think proceeds from the assumption that the quarantining of skills and the reliance on that is somehow, removes the level of skills from any examination. I daresay it can't be right. Now, I'm not going to - our submissions with regard to this appear on page - I think we have gone to a fair bit of detail in our reply - in paragraph 63 and onwards and that deals with the quarantining of skills and AWAs.

PN2957

It starts at paragraph 63, under the heading: discrimination. It firstly deals with the active policy of pursuing candidates for AWAs. The Commission will see paragraph 63 and onwards. I'm not going to repeat those paragraphs. We deal as broadly as we can with the assertions about AWAs and about reliance on the benefits of an industrial instrument. Might I say with respect to this, that I've handed up this argument that has run against us about AWAs, sort of, is a statistic in a way. It says: it is a disproportionate number. Our response to that is, disproportionate implies that there is a proportionate number. Is the proportionate number the exact percentages as they stand or can we assume that the signing of an AWA is linked logically with the prospects of an employee getting a higher score?

PN2958

In my submission, there is no disproportionate numbers. It is logical that an employee who choses to work more flexibly is going to be rated more highly. It might also be accepted that that ability or acceptance of working more flexibly may well be found more commonly in AWA employees, but I think it should be knocked on the head, the idea that somehow AWA employees were exempt or left out of the process. Mr Bates gave evidence about this. I've handed up the first page of exhibit PC74. I think paragraphs 76 and 77 refer to there not being discrimination but more logically, and perhaps more to the point, paragraph 158 says this:

PN2959

The company made it clear to all employees that the voluntary redundancy offers were being made to both AWA Award and Staff on the basis of merit.

PN2960

Thirteen AWA employees have accepted voluntary redundancy packages during this process along with a number of staff with details of the reduction in numbers set out.

PN2961

Now, the Commission will recall what I started off today saying, this was a process whereby the company wanted to reduce its numbers, it went through a voluntary redundancy process, it went through a few voluntary redundancy processes. At the end of the day it had 16 employees that had been offered voluntary redundancies but had decided not to go, it was these 16. Now, if an AWA employee had not chosen to accept, if one of the 13 had chosen not to accept and had hung on in there until the very end it may well be that we have 13 - we have some AWA employees amongst those that were compulsorily retrenched.

PN2962

The AWA employees, the 13, accepted voluntary redundancy packages as did a large number of other employees. It can't be said that they were somehow exempt or immune from the process. Now, as to membership of the CFMEU, your Honour, Senior Deputy President Kaufman took me to paragraph 298 which, when I've looked at the - it is a transcript of Mr Yeates and it really fully - the proper context of it commences on transcript page 4366 and in cross-examination:

PN2963

Now, Mr Yeates at the weekly manager's meeting, there was a report on the reduction in CFMEU membership, wasn't there?---Yes, the number of AWAs and CFMEU members were recorded.

PN2964

I don't know what the frequency but it would have been discussed at some point?---Yes.

PN2965

In other words, there was a measure in the reduction in CFMEU membership, wasn't there?---Yes.

PN2966

And you know that was one of the key result areas being used at Blair Athol during 1997 and 1998, namely the reduction in CFMEU membership, wasn't it?

PN2967

The key result areas he asks.

PN2968

It was a target, wasn't it, the number?---Mr Yeates, not for me it wasn't, no.

PN2969

Well Mr McCrea would know if it was or wasn't, wouldn't he?---He might, I don't know. You wouldn't say, I'm not aware of any targeted numbers of CFMEU members at any time.

PN2970

Well, there was a target of reducing the CFMEU membership, wasn't there?---Yes.

PN2971

This is the bit that appears.

PN2972

In other words, reducing the influence of the union at Blair Athol coal project, wasn't it, less union members?---Yes.

PN2973

And, in particular, when you say less union members you mean less in the CFMEU?---All union members I'd suspect, I think AWAs were offered for everyone, it wasn't just CFMEU members.

PN2974

And you understand that in particular the company was interested in people leaving the CFMEU and going to the AWA, wasn't it?---I don't know that, no.

PN2975

It is the evidence forward, and that - I'm not sure where it takes the position. How it is used by the CFMEU is as follows, and your Honour has gone to paragraph 298, it is used in this way, and I think that is on page 167. Now, we have got to remember the heading here, the heading is: Termination related to employees remaining members of the CFMEU. Well, can I say that the heading might be correct. The heading might be correct that the numbers that were terminated were related to employees remaining members of the CFMEU, there may well be a statistical link.

PN2976

Indeed, those compulsorily retrenched at the end, 100 per cent of them were union members. Now, as to whether - I'm certain that proposition can't be advanced in respect of the problem of voluntary redundancy process, but let us assume that that is the proposition put. The real question to ask is: Was it a reason for the termination that people were CFMEU members? Was it a reason that they were selected? Now, the argument put, in 298, is: first, the employer by terminating the employees and targeting other CFMEU members by offering voluntary redundancy.

PN2977

Well, it can't be said that just CFMEU members were offered voluntary redundancies, I have already taken the Commission to the fact that AWA members, so that is an incorrect premise: was implementing its strategy at BA of reducing CFMEU membership. Well, then in support of that is the quotation from Mr Yeates. Now, that really requires that the target that Mr Yeates spoke of was one of the drivers for the offers for voluntary redundancies that were made. Now, really there is nothing to support that, there is nothing that links up the offering of voluntary redundancies to CFMEU membership. It is clear, as I've just said and never contested, that AWA employers were offered voluntary redundancies as well. So it starts from a premise which is simply not true, then Mr Yeates has referred to.

PN2978

Well, unless there is evidence or that it was put, it has a reason, it needed to be put to Mr Yeates: well, in pursuit - this is the question that probably should have been asked: in pursuit of that target you adopted a policy of targeting CFMEU members by offering voluntary redundancies. And then if he had said: no, we didn't, I suppose it would said he was telling a lie, if he said: yes, I suppose we wouldn't be here. That is not where we are at, that is not the evidence and, indeed, the premise of the start is incorrect. Now, I'm not sure I can take the matter of 298 much further, your Honour, that is the evidence and that is the use that the CFMEU make of it, and we say it just does not go where they want it to go.

PN2979

Now, what I propose doing now was dealing with the remedy, I suppose, and that leads to a position where I propose dealing with section 170CH(2) and the question about appropriateness of reinstatement or otherwise. Now, that was where the evidence of Mr Bates came into play. We say that the position in 1998 was that there was no work for these employees, and we have set out all the evidence for that in our reply. We also say that remains the position today, and that is a significant factor that the Commission should be weighing up if and when it comes to exercise any discretion about remedy.

PN2980

So I note that there was a ruling earlier today about that matter. My position was that I was prepared to, of course, call Mr Bates. I wanted to take him to some matters in Mr Barnes' statement but I didn't want to have to go to those matters that I identified earlier because I don't think that is a useful exercise for either the Commission or for anybody. So I am in the Commission's hands as to where we go now.

PN2981

SENIOR DEPUTY PRESIDENT WATSON: Yes, Mr Parry, we propose to continue in the way we indicated this morning and go to Mr Crawshaw in respect of the question of whether the terminations were harsh, unjust or unreasonable. You are in a position to deal with that presently, Mr Crawshaw?

PN2982

MR CRAWSHAW: Yes.

PN2983

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well. Thank you, Mr Parry.

PN2984

MR CRAWSHAW: We, of course, have done written submissions on the matter. If I could first go to matters which I will broadly call questions of law - - -

PN2985

SENIOR DEPUTY PRESIDENT WATSON: Before you do, Mr Crawshaw, perhaps we will mark your written submissions and that is comprised of two folders. The first dealing with general submissions and the second with individual submissions.

EXHIBIT CFMEU#1 WRITTEN SUBMISSIONS

PN2986

MR CRAWSHAW: We have dealt with what we say is the Commission's task at pages 8 to 18 of our written submissions and in particular we pointed out that the stage we have reached in the proceedings is that leave to appeal has been granted. It is made tolerably clear by the judgment on 18 February 2002 as clarified by the statement on 8 March 2002 that we have reached the stage were it has been found seriously arguable that one, Commissioner Hodder erred in failing to make sufficient findings of fact and in failing to adequately analyse the evidence in submissions.

PN2987

Two, that a palpable error - when I say two, seriously arguable that a palpable error is demonstrated. So the position that seems to be ignored in oral submissions as well as written submissions by our opponents is that your first task before going any further is to find a palpable error. We have set out the extracts from Cole v Allied in the High Court that make that clear.

PN2988

SENIOR DEPUTY PRESIDENT KAUFMAN: Mr Crawshaw, engaging in that task we issued a direction last week to which you replied on 29 April - - -

PN2989

MR CRAWSHAW: Yes.

PN2990

SENIOR DEPUTY PRESIDENT KAUFMAN: Is it still your position that we are obliged to read all of the transcript, all of the exhibits and all of the submissions of the proceedings at first instance in coming to our conclusions?

PN2991

MR CRAWSHAW: Yes, and, in fact, that is the position that - the appellants, at least, have adopted the position that you should read all of the transcript.

PN2992

SENIOR DEPUTY PRESIDENT KAUFMAN: The appellants have?

PN2993

MR CRAWSHAW: Yes.

PN2994

SENIOR DEPUTY PRESIDENT KAUFMAN: I understood Mr Parry to be saying that they - the appellant has pointed out and taken us to all the material upon which it relies in its appeal books. Am I wrong in that, am I?

PN2995

MR CRAWSHAW: Well, paragraph 22 of their reply handed up today takes a careful reading of the transcript to obtain a balanced view of much of the evidence. That is no more than repetition of what was said in their original reply and - by my learned friend, Mr West who was then appearing for the appellants in his oral submissions on the last occasion.

PN2996

SENIOR DEPUTY PRESIDENT KAUFMAN: But if you read the next sentence that puts Mr Parry's submission in a context. I don't take that, speaking for myself, to be an invitation to the Commission to read all the transcript. It is a reply to you saying: don't just look at the excerpts that have been extracted but read all of the transcript.

PN2997

MR CRAWSHAW: Well, my learned friend can speak for himself as to what it means. I don't want to try and interpret any further - - -

PN2998

SENIOR DEPUTY PRESIDENT KAUFMAN: Well, Mr Crawshaw, speaking for myself I don't intend to read all of the transcript, all of the exhibits and all of the other material before Commissioner Hodder unless you specifically direct me to the passages upon which you like. For instance, exhibit CFMEU#84 is a photocopy of Mr Riordan's diaries over many, many periods of time. Where in this bundle do I look? Do I read every page and then try to understand from that page what it is that I should conclude from it?

PN2999

MR CRAWSHAW: Well, we certainly will be making submissions - - -

PN3000

SENIOR DEPUTY PRESIDENT KAUFMAN: I am not going to do that Mr Crawshaw. Unless you can give me some authority to the effect that we on an appeal of this nature are obliged to have regard to everything before the Commission at first instance without the senior counsel on behalf of the respondents directing our attention to the passages upon which they rely. Speaking for myself I am not minded to do so.

PN3001

MR CRAWSHAW: Well, the exhibits may come into a separate category but certainly in order to put yourself in as close position as the trial Tribunal, if I can call Commissioner Hodder that, it is certainly necessary to read the transcript in order to see the methodical way in which the evidence was presented and although as I have said we say in the letter that you can't put yourself in the position of assessing the demeanour of the witness or the witnesses by reading the transcript you get yourself put in a position where you can at least approximate what the Commissioner was presented with at first instant in order to redetermine it for yourselves.

PN3002

I mean, one of the reasons - one of the reasons that we suggested the matter should be remitted to Commissioner Hodder was this very point. That he had already had the benefit of that and the Full Bench has rejected that submission but now the Full Bench has an obligation to put themselves in as close a position to Commissioner Hodder's frame of mind as they can.

PN3003

SENIOR DEPUTY PRESIDENT KAUFMAN: Mr Crawshaw, there are thousands of pages of transcript at first instance, are there not?

PN3004

MR CRAWSHAW: Yes.

PN3005

SENIOR DEPUTY PRESIDENT KAUFMAN: Many of those pages are debates about admissibility of evidence. Many of those pages are your learned junior taking witnesses to a certain point by trying to get admissions from them and finally obtaining an admission that he wants to obtain. It is only the admission that he finally obtains upon which you rely. Why should we read all the pages surrounding that? Why should you not perform what I would have thought is a task of counsel to take us to the passages in the evidence that you say makes your case?

PN3006

MR CRAWSHAW: Well, we do intend to do that but that does not relieve this Tribunal as an Appeal Tribunal determining the matter for itself.

PN3007

SENIOR DEPUTY PRESIDENT KAUFMAN: I am not suggesting that we won't but I am reiterating that unless you can persuade me by referring me to some authorities that I have to read every page of the transcript at first instance I will go to those pages to which you refer me and any other pages to which I feel inclined to go but I will not feel obliged to read every page of the transcript before the Commissioner at first instance. I don't think I can put my position any more clearly. I have given you the invitation.

PN3008

MR CRAWSHAW: Well, I can't take it to any authority. I have never had it - to be quite frank, I have never had it suggested that the Commission - an Appeal Bench is not going to look at anything other than that that is put in written submissions on appeal.

PN3009

SENIOR DEPUTY PRESIDENT KAUFMAN: Or directed to it. Or to which you direct me to.

PN3010

MR CRAWSHAW: Yes, well, I have never had that put and I have never seen any authority for that proposition either.

PN3011

SENIOR DEPUTY PRESIDENT KAUFMAN: Well, there is a first time for everything, Mr Crawshaw.

PN3012

MR CRAWSHAW: Well, there may be both ways. That is our position. That is jumping ahead a bit. I was going to come to that. We haven't reached the position where this Full Bench is to determine the matter for itself because the Full Bench has not found a palpable error yet. That is really what I was coming to and I will come fairly shortly to the way in which we intend to assist if a palpable error is found.

PN3013

I will just deal with this point, the serious arguable case is of course set out in the judgment dated 18 February and we don't see that - it only having reached the stage where the Commission has found that matter seriously arguable. We don't see that as the end of the debate and we repeat our submissions put at first instance, that there was nothing defective about Commissioner Hodder's reasoning at all. In particular we say that there is nothing wrong with a Tribunal or a Court for that matter, in making a decision that adopts the submission of a party to the proceedings and talking about authority, you won't find any direct authority on that point, probably either way.

PN3014

We would have thought it is fairly uncontroversial that a Tribunal or a Court is entitled to adopt as part of its reasoning the submissions of one of the parties. I think as I said on the last occasion, there may be some criticism of the Tribunal if it nearly plagiarises submissions and didn't acknowledge them. That wasn't what Commissioner Hodder did, he adopted in various parts, submissions of the respondents and in doing so adopted the reasoning.

PN3015

COMMISSIONER SMITH: Mr Crawshaw, sorry to interrupt you, can we take you to paragraph 33 of the judgment and it may be that we are just at cross-purposes as to what is intended by your submission. There we said that we were satisfied that is was seriously arguable.

PN3016

MR CRAWSHAW: Sorry, this is the judgment of the Full Bench, yes?

PN3017

COMMISSIONER SMITH: The Full Bench, yes.

PN3018

MR CRAWSHAW: Yes.

PN3019

COMMISSIONER SMITH:

PN3020

Failing to make sufficient findings of fact and failing to adequately analyse the evidence in submissions and that an appealable error is demonstrated.

PN3021

MR CRAWSHAW: Yes.

PN3022

COMMISSIONER SMITH: Then on that basis we granted leave to appeal.

PN3023

MR CRAWSHAW: Yes.

PN3024

COMMISSIONER SMITH: Did I understand you to say that we hadn't found appealable error?

PN3025

MR CRAWSHAW: Yes, because in the follow - this is a matter, I think raised by my learned friend following hearing and I think - I didn't put much of a submission, I just said: well, the Commission will know what it meant and then - - -

PN3026

COMMISSIONER SMITH: We haven't found his decision to be wrong other than what we have identified.

PN3027

MR CRAWSHAW: Well, except in relation to both those matters identified, it was found that the words "seriously arguable" applied to it. In other words, in both those respects you haven't found them to be wrong. It is in the statement of 8 March. That is the point that I'm going to in saying that because it has only reached the stage of seriously arguable as distinct from finding of error that the argument is still up for grabs.

PN3028

COMMISSIONER SMITH: Yes.

PN3029

MR CRAWSHAW: We have canvassed this in our written submissions so I don't want to belabour the point but to the extent that there is a duty on a Tribunal or even a Court to give reasons, our submission is, that it does not require the giving of reasons for the acceptance or rejection of parties submissions and that really goes to the heart of the judgment of the - your Honour, Commissioner Smith just took me to the judgment of 18 February for example under the heading of: Leave to Appeal at page 7, beginning at page 7, paragraph 19, it says:

PN3030

Commissioner Hodder's decision includes a large number of extracts many of them lengthy from the applicant's written submissions and to a lesser extent from Pacific Coal's written submissions.

PN3031

Paragraph 21:

PN3032

To the extent that a basis is provided for these conclusions is often by quoting or by reference to passages from the applicant's written submissions.

PN3033

Then various examples are given beginning at paragraph 22, at the end of that paragraph it said:

PN3034

In this paragraph Commissioner Hodder accepts the written submissions of the applicants set out in the extract quoted. Before Commissioner Hodder, these submissions were contested by Pacific Coal. Commissioner Hodder makes no reference to Pacific Coal's submissions without explaining why he accepts the applicant's submissions.

PN3035

Similarly in the next paragraph, paragraph 23 at the end on page 13:

PN3036

In this paragraph Commissioner Hodder expresses the view that certainly allegations of the applicants are exemplified by an extract from the applicant's submissions in reply which he sets out.

PN3037

The last line:

PN3038

The issue is obviously a contentious one yet Commissioner Hodder accepts the applicant's submissions without any reference to Pacific Coal or the provisions of any reasons for accepting the applicant's submission.

PN3039

Similarly at the end of paragraph 24 on page 17 and paragraph 30:

PN3040

No or known adequate reasons are given for the findings in paragraph 18(a) although a number of the subparagraphs contain extracts from the written submissions. Almost everything said in paragraph 18(a) is controversy about which there was conflicting evidence of competing submissions, yet the decision contains no analysis of the evidence or the submissions.

PN3041

Now, a simple point is that to the extent that there is a duty on a Tribunal or even a Court to give reasons, it does not require the giving of reasons for the acceptance or rejection of parties submissions. The duty to give reasons has never been put in those terms. The duty to give reasons if it exists as being put in terms of giving reasons to the decision and if a parties submissions contain reasons and those submissions are adopted by the Tribunal, they become the reasons of the Tribunal.

PN3042

The fact that they have their origin in the parties submissions is neither here nor there. They stand or fall on their own merits and in our submission, although you found that it is a seriously arguable case, you should not go on and find that there is appealable error. Now, we have also dealt with the situation which we also canvassed on the last occasion about whether there is a duty to give reasons and what the remedy is. We have repeated that, we recognise that implicit in the fact that this matter is now before the Full Bench is probably a finding by the prior members of the Full Bench, that those submissions did not find favour, but we repeated them nonetheless.

PN3043

Could I then move to the application of section 170CG? We deal with that at pages 88 to 101 of our submissions and I should say something about it because my learned friend spent some time this morning attempting to persuade this Full Bench that previous authorities of the Commission were wrong on this point. In fact, the appellant has made it clear and made it clear on the last occasion in December that it is seeking to depart from the approach in now three Full Bench decisions, the Windsor Smith, the Lockwood and now the decision in Smith and Moore v Paragon.

PN3044

May I remind you that in taking that approach it also seeks to depart from the position taken by the appellant at first instance. This wasn't a submission that was put at first instance. The submission that was put at first instance was consistent with those Full Bench authorities. In any event, it is terribly clear in this case that the termination of each of the applicants' employment or each of the respondents to this appeal's employment, was as a direct result of the application of the assessment process.

PN3045

In other words, and forgive me if I am repeating myself for those members who have already heard this, though it was some time ago. In other words, there is a direct cause or link between the termination and capacity or conduct as each applicant would not have been terminated but for the application of the performance assessment process, and the "but for" test is of course the classic test for causation.

PN3046

The appellant seeks to meet this argument by saying that the terminations would not have taken place but for the operational requirements.

PN3047

However, this does not meet the argument that I have just put. The appellant's argument really depends on there being only one possible cause and assumes that a finding that there is a reason relating to operational requirements does not allow for a reason relating to capacity or conduct. Conversely, their attack on the Full Bench decisions is based on the fact that if there is a reason relating to capacity or conduct as found by those Full Bench decisions there can't be a reason relating to operational requirements and the simple answer to all of that, is that there can be more than one reason, that is what is said in Windsor Smith.

PN3048

Windsor Smith was followed in Lockwood, my learned friend seeks to say Lockwood took a different approach. Windsor Smith was expressly followed in Lockwood and of course the latest case, Smith and Moore v Paragon takes the same approach namely, that there can be more than one reason. In other words, they reject the appellant's argument that these two reasons, the reasons relating to operational requirements on the one hand and capacity or conduct on the other are alternative and contrary. I mean, for all the talk that is the basic flaw in the appellant's argument because it is obvious that in many cases these two reasons work together to effect a termination.

PN3049

Now, my learned friend took you to Smith and Moore v Paragon and I don't want to read out the passages that he read out, I might just note that at paragraph 78 there is a quote there from the - what is called in that case, the Sulocki judgment, the Sulocki is Lockwood, I have been referring to it as Lockwood, and that came after the Full Bench of the Smith and Moore v Paragon case that dealt with Windsor Smith. I might just note that quite understandably the Full Bench in Smith and Moore v Paragon did not quote from Sulocki or Lockwood where they adopted the earlier passage from Windsor Smith, in other words, they didn't want to repeat the quote from Windsor Smith. But if you look Lockwood or Sulocki you will find there the adoption of what was said in Windsor Smith.

PN3050

If my friend had read a little bit further he might have found the answer to your Honour, Senior Deputy President Kaufman's question about when will the Commission not follow an earlier Full Bench decision? You will see at paragraph 88 the Full Bench in Smith and Moore v Paragon said this:

PN3051

Finally, the Commission has traditionally taken the view that it should only depart from previous Full Bench decisions in limited circumstances ....reads....infrequent and exceptional and pose no real threat to the doctrine of precedent and the predicability of the law.

PN3052

PN3053

There is a reference to the Queensland the Commonwealth and then the Full Bench says:

PN3054

While the Commission is not Court, the public interest considerations underlying these observations have been applied with similar if not equal force to appeal proceedings in the Commission.

PN3055

PN3056

You will see there is a reference in the footnote to the five member Bench in Refurnishing Industry Association of Queensland which your Honour, the presiding member, was a member. Now, we haven't had a chance to pick that out, but - so we reject the proposition that there is unclear authority of the other Full Benches, there are all consistent, in particular, the suggestion seems to come from an argument that Sulocki or the Lockwood case as I call it, does not adopt the two reasons line, but rather says: in a selective redundancy where there is conduct or capacity the only reason that counts is conduct or capacity rather than operational requirements.

PN3057

A proper reading of that judgment will see that that is not the case and as I said it adopted the Windsor Smith line, in fact, I think the President of the Commission was on both cases and there wasn't a rejection of operational requirements as a reason. There was a rejection of operational requirements as the only reason. So this argument that those cases lead to a situation where the words "operational requirements" have no work to do just fall aside.

PN3058

In any event, coming to the question of practical difference, if it is conceded, as the appellant does, that these matters may be considered under section 170CG(3)(e) what are we arguing about, and it is clear there is no practical difference. My learned friend says: well, there is a practical difference because you don't have to have regard to procedural fairness type considerations under (e) whereas you do under (b), (c) and/or (d). But if it is argued in this case, as it is in this case, that there has been a breach of procedural fairness and if it is put that that arises that is a matter that you should consider under (e) practically speaking it makes no difference whether you consider under (e) or under (b), (c) or (d) because if it is put by one side of the record as a matter of procedural fairness, putting aside the statute, as a matter of procedural fairness you must have regard to it. You might have regard to it and give it no weight, but that is no different than what happens under (b) (c) or (d). So as a matter of practicalities this is an argument that goes nowhere.

PN3059

Now, if I could then move on to - briefly to, and I say briefly because I'm not going to finish, our submissions are not going to finish on this matter today, but if I could just move on to the question of the findings of unfairness of Commissioner Hodder. In paragraph 188, the central paragraph of Commissioner Hodder's findings and he makes various findings. Without taking you in detail through that, I think I did that on the last occasion. The findings come in to three categories, firstly, procedural unfairness, secondly, black list, findings relating to the black list, and thirdly, findings of discrimination.

PN3060

Now, Mr Parry, as Mr West did before him, puts our submissions and these factual findings at their highest in order to the more easily demolish them. In other words, he says: the black list was integral to the findings, it was integral to our submissions. Now, that is not the case. Properly analysed these three areas of findings, discrimination, black list and procedural unfairness can be viewed separately. Certainly, they can be looked at together but they can also be looked at separately and for example, the procedural unfairness findings stand on their own.

PN3061

We submitted at first instance, we submitted last time on appeal and we will be submitting again in these proceedings that the procedural unfairness without any findings of the black list or discrimination, without new - if you decided a new finding making any findings that our submissions relating to the black list or discrimination are made out, the procedural unfairness is enough. It was enough in the Hunter Valley case, it was enough in the Mount Thorley case. Now, admittedly, both of those are on appeal but you don't have to go so far, but this, of course, is a stronger case. That is an alternative submission and we will seek to make our submissions as to discrimination and the matters that arise from the black list still to go, as it was called.

PN3062

Now, despite what I have said earlier about reading the transcript and matters such as that, we do intend to assist you by oral submissions going to the detail of the matter. We hope we have assisted you by the written submissions, but we are going to further assist you by oral submissions and more over we intend to hand up material organised in relation to each of the applicants, photocopies of the relevant parts of the Appeal Book so that you can better understand what we are saying. Now, Mr Parry has addressed two of the applicants. We judge that as insufficient if there is going to be a redetermination of the matter.

PN3063

My learned junior is going to take you to the evidence relating to each of the 16 applicants and as I said we will at the same time hand to you a compilation of the documents relating to each of the applicants and hopefully in the course of that demonstrate the soundness of Commissioner Hodder's findings and in any event demonstrate the soundness of our submissions as to why there should be findings of harsh, unjust and unreasonable. That exercise may take some time, we can start on it now or start on it first thing in the morning.

PN3064

SENIOR DEPUTY PRESIDENT WATSON: Yes, it might be more convenient, Mr Crawshaw, if we were to start in the morning. So perhaps we will adjourn until 10 o'clock tomorrow.

ADJOURNED UNTIL WEDNESDAY, 1 MAY 2002 [4.05pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #PC1 TWO VOLUMES PN2662
EXHIBIT #PC2 REPLY FOR APPELLANT PN2662