C2004/7053, Transcript of Proceedings [2005] AIRCTrans 513 (1 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10572

JUSTICE GIUDICE, PRESIDENT
DEPUTY PRESIDENT IVES
COMMISSIONER EAMES

C2004/7053

s.45 appeal to full bench

APPEAL BY NHP ELECTRICAL ENGINEERING PRODUCTS PTY LTD
(C2004/7053)

MELBOURNE

9.58AM, FRIDAY, 18 FEBRUARY 2005

PN1

MR S WOOD: I seek leave to appear on behalf of the appellant.

PN2

MR M CHAMPION: I seek leave to appear on behalf of the respondent, Mr Liu.

PN3

JUSTICE GIUDICE: Leave is granted in each case. Mr Wood?

PN4

MR WOOD: Thank you, Commissioner. I hand up a short outline of argument which runs for three pages to each of the members of the bench. I have handed a copy to my learned friend.

PN5

JUSTICE GIUDICE: I might take a minute to read that, Mr Wood.

PN6

MR WOOD: Yes.

PN7

JUSTICE GIUDICE: Yes. How long do you think your oral submissions will take, Mr Wood?

PN8

MR WOOD: I think about an hour, your Honour. I think the first two points will take about half an hour, and the third point about Mr Micallef's evidence, about another half an hour.

PN9

JUSTICE GIUDICE: Yes, proceed, thanks, Mr Wood.

PN10

MR CHAMPION: Just before Mr Wood commences can I indicate there is a Cantonese interpreter in the court room, Ms Lui. In my submission she doesn't need to be sworn, but I just wanted to explain to the Bench that the apparent chatter may enter the court room.

PN11

JUSTICE GIUDICE: Yes, thanks, Mr Champion. Mr Wood?

PN12

MR WOOD: This is an appear under section 45(1)(b) in relation to an exercise of jurisdiction conferred on Commissioner Hingley by section 170LW of the Act, and that section confers jurisdiction to, when read with the certified agreement in question, to resolve disputes over the application of the agreement. The difference between the jurisdiction that Commissioner Hingley exercises and the jurisdiction that a magistrate would exercise in relation to the same facts are that Commissioner Hingley is not restricted to or shouldn't have restricted himself to the meaning of clause 17 of the agreement, that is, he should have and was free to take into account all the factors that were relevant to the exercise of his discretion as to how to resolve the dispute.

PN13

What he did was approach this task as if he were a magistrate construing clause 17 of the certified agreement, that is, he decided whether or not clause 17 of the certified agreement applied in this case and for our part we say that that is an error. That is not to say that he couldn't have regard to clause 17 of the certified agreement. Indeed, he could have had significant regard. Indeed, it might have been the dominant factor that motivated his decision, but Commissioner Hingley was bound to have regard to the other factors that were placed before him in exercising his decision as to how to resolve the dispute and plainly that submission is correct. The whole reason the Commission has jurisdiction under section 170LW is to bring some industrial sense to what would otherwise be a reasonably arid legal argument.

PN14

That is, if you had this dispute down at the Magistrates' Court, one side would get nothing and the other side would get the full amount, and those are the only two options. The options before the Commission on a dispute finding or a question of resolving a dispute under section 170LW are broader. So you can give something at either end of the spectrum or something in the middle or something that resolves the dispute which is neither at either end or in the middle, and presumably the reason that this jurisdiction has been conferred on the Commission is to allow it to have regard to industrial issues and collective rights in determining the answer to or the resolution of a dispute over the application of an agreement.

PN15

What we say that Commissioner Hingley failed to do was to have regard to some of the surrounding circumstances that relate to this particular individual dispute. The first one that we say Commissioner Hingley failed to have regard to was the nature of the industrial deal that was done between the union of which the respondent to the appeal was a member and the appellant. That industrial deal was in the form of a certified agreement and it was tendered before Commissioner Hingley and indeed, no criticism was made of the integrity of that deal as found in the certified agreement because it's the very source of the jurisdiction of the Commission. It's found at exhibit W3 at tab 21 of the first folder of the Court book. The appellant's position is that clause 17 of the agreement, which is on page 7, which says:

PN16

Redundancy shall generally be in accordance with the Metal Engineering and Associated Industries Award with severance pay being 2.5 weeks per year for each completed year of service with a maximum of 52 weeks payment.

PN17

And must be read alongside clause 21 of that agreement which is on the next page which says:

PN18

As part of the relocation to Laverton in 2004 it is agreed that all employees will receive a relocation payment of $650 gross payable in two equal instalments of $325, the first payment to be made within two weeks of the move and the second after a further three months. Any employee who leaves within that period will not receive the second payment. Further, in order to alleviate the disruption to employees the company provide a commuter bus to travel from the Richmond site to Laverton prior to the commencement of work and return after the completion of work. The company will use its best endeavours to ensure that adequate parking is available at Richmond.

PN19

The question for Commissioner Hingley was how do clauses 21 and 17 interact, that is, does one read clause 21 as by implication reading down clause 17, that is, if someone resigns because of the relocation to Laverton are they entitled to the payments under clause 17 or are they only entitled to the payments under clause 21? For our part we say - - -

PN20

JUSTICE GIUDICE: Sorry, I don't understand the resignation reference.

PN21

MR WOOD: Perhaps it should be expressed in this way, your Honour. A resignation in response to a request of transfer from Richmond to Laverton which would then be argued by the person who resigns as a constructive dismissal as a result of the request to transfer, perhaps a constructive dismissal might be the more legally accurate way in terms of the applicant to put the matter.

PN22

DEPUTY PRESIDENT IVES: Yes. Mr Wood, doesn't Commissioner Hingley address the point that you are talking about paragraph 46 of his decision?

PN23

MR WOOD: Yes, Deputy President, he does address it. The point we make is not so much that he failed to address that issue, but he failed to address the evidence about that issue. That is, we put this point in two ways. We look at the plain words of the agreement and Commissioner Hingley looked at that, we say he got it wrong, but we also put it on the basis of some extrinsic evidence from one of the negotiators on behalf of the appellant as to what the interaction between clause 17 and clause 21 was and that witness, Mr Ryan, gave evidence which was both objective and subjective. That is, he gave objective evidence about the negotiations and subjective evidence about what his opinion of the effect of the negotiations were.

PN24

Now, Commissioner Hingley gave no weight to that evidence of either an objective or a subjective nature. Worse still, he criticised us for not calling the union negotiator in our case which is, I think, at the reference referred to, Deputy President, I will just have to turn it up, it might be just before that.

PN25

DEPUTY PRESIDENT IVES: 44.

PN26

MR WOOD: Yes, thank you, Deputy President. There was no need on our part to call any official from the CEPU to prove what the intention of the agreement was. We had objective evidence from one of the negotiators saying what was discussed in negotiations. It was up to the applicant who was a member of the union, whose union negotiated this agreement on his behalf, to call any evidence that he could to dispute what we said or what Mr Ryan said was the effect of the negotiations and - - -

PN27

DEPUTY PRESIDENT IVES: But what's wrong with the conclusion in 46? That doesn't depend on any inferences, does it?

PN28

MR WOOD: Well, it does to this extent, your Honour, because if Mr Ryan's evidence was accepted, then the construction that is placed upon clause 21 would be not necessarily what is said in the first sentence at 46, but what is implied by the second sentence and what is implied by the second part of the fourth sentence, that is, Commissioner Hingley could, by having regard to Mr Ryan's evidence, have still come to the view that it's hard to envisage how a union can agree on behalf of all individual members that they would relocate. We don't take issue with that. But it's the second part, "and the redundancy will not apply in any circumstances," that is, the circumstances of the relocation. That's what Mr Ryan was giving evidence about, that's what he said the objective intention of this agreement was, that the redundancy will not apply in circumstances of relocation notwithstanding any individual's particular circumstances. Now, it is, we would say, quite wrong for Commissioner Hingley to require us to corroborate by evidence the sworn evidence of one person to the negotiations.

PN29

DEPUTY PRESIDENT IVES: But if the conclusion in 46 as to the plain reading is correct, what is the ultimate significance of any evidence as to oral agreements or subjective intentions of the parties?

PN30

MR WOOD: Well, oral agreements wouldn't - there would be no significance, and the subject of intention of the parties would have no significance. But the objective fact of the negotiations would have significance.

PN31

DEPUTY PRESIDENT IVES: But why would it have significance if the parties have reduced their agreement to clear writing?

PN32

MR WOOD: Well, because this Commission says in - sorry, it's the Federal Court in PKIU v Davies, but PKIU v Davies has been applied in this Commission to say that where there is an ambiguity in a certified agreement one can look at the objective facts, extrinsic material, surrounding - - -

PN33

DEPUTY PRESIDENT IVES: Yes, I am aware of that. Perhaps I am not making myself clear. Paragraph 46, the second sentence, suggests there is no ambiguity and really what I am putting to you is, if there is no ambiguity, where are we getting to with all of the - - -

PN34

MR WOOD: Well, if that was the approach that was taken, then this point drops away. We would say that's not the right approach, that plainly there is an ambiguity about whether or not redundancy is payable in the circumstances of relocation, but if you take the view that the agreement is plain, then there is no point, but as soon as one gets over that hurdle and says there is an ambiguity, and the test for an ambiguity is quite like what - one version of the test is it's just enough to have an argument at the bar table about it. But whether one takes that - that may be putting it - - -

PN35

DEPUTY PRESIDENT IVES: I know it's one version of the - it just might be a little too low.

PN36

MR WOOD: But even if one takes the view that the Bench has to be satisfied there is an ambiguity we would say that the bench should be satisfied there is an ambiguity about this. Once one gets over the question of an ambiguity, then one gets into the reception of extrinsic evidence, of course only extrinsic evidence, but extrinsic evidence, and at that point Mr Ryan's evidence not only should have been not required to be corroborated, but should have been accepted. Because of the rules about evidence the ETU official or the CPU official should be regarded as being in the camp of the applicant and having to be required to be called by the applicant should the applicant want to disagree with what Mr Ryan said.

PN37

DEPUTY PRESIDENT IVES: You say the inference should be drawn the other way?

PN38

MR WOOD: Exactly. And one doesn't even these days in the criminal courts have to corroborate claims of sexual assault. The idea that in a civil jurisdiction, in an arbitral jurisdiction you have to corroborate your evidence by someone from the other side is just quite wrong. So we say that once one looks at that objective evidence, then one, we would say, would be obliged to find that redundancy was not payable in the event of relocation to Laverton for any individual. We would put it that high. But just for the purposes of the appeal we don't have to get that high. All we have to say is that it's a factor that should have been taken into account and it should have been taken into account. That then leads to the second issue and this is at 2.1(b).

PN39

DEPUTY PRESIDENT IVES: 2.1(b) of your outline?

PN40

MR WOOD: Of the outline, yes, Deputy President. We say that weight should have been attached to the reasonableness of the industrial deal, the fact that there were payments made or obliged to be made under that certified agreement and that there were or is an obligation to provide a bus for people to travel. We also say that importantly the industrial principles regarding relocation are important and in this regard we took the Commission to the target case of SDP Watson, which was exhibit C15 under tab 15 in the first folder of the Appeal book, and we indicated that a transfer of a similar distance to a similar location, that is from Keon Park to Laverton, was regarded as one that didn't attract any severance payments by way of redundancy because of the fact that there was an absorbable transitional payment of $25 per week.

PN41

Now, one of the things we pointed out to Commissioner Hingley, and this is at paragraph number 1727, is that those are amounts referred to by SDP Watson have already been built into the certified agreement, that is, they have taken into account the industrial principles as we found them, as the appellant found them at the time of making this decision. It had regard to what the Commission had said and then built the idea of a transitional payment into its industrial deal and we say that should have been given great weight. If the industrial principles of the Commission are to mean anything, then the fact that a party has tried to apply them in the form of a certified agreement is something that should be given great weight when an issue arises about the manner in which a dispute about redundancy should be resolved.

PN42

DEPUTY PRESIDENT IVES: The issue of a payment, you are referring there to the transitional payment in clause 21, are you?

PN43

MR WOOD: Yes, in paragraph 18 and 20 - sorry, which - - -

PN44

DEPUTY PRESIDENT IVES: You were just making a submission, not particularly specific, about the parties having incorporated a payment into the agreement.

PN45

MR WOOD: Of course, under the certified agreement.

PN46

DEPUTY PRESIDENT IVES: So you are referring to that payment?

PN47

MR WOOD: Yes, sorry, Deputy President.

PN48

DEPUTY PRESIDENT IVES: You are not suggesting there was any other payment provided for?

PN49

MR WOOD: No. What we're saying is that if you do the calculations and you look at the way that $25 per week would be absorbed as a transitional payment it works out to be roughly the same as that amount of $650. There is no evidence to this effect, but my instructions are that that's how that amount was calculated.

PN50

DEPUTY PRESIDENT IVES: That is the $25 in the case before SDP Watson?

PN51

MR WOOD: Before SDP Watson, absorbable is equivalent to $650 flat payment and that's what we said to Commissioner Hingley, the target case has been built into the certified agreement, that is the amount of $650 in the certified agreement, and it wasn't given any weight. There are other factors which are important, which I won't burden the bench with to any great deal now, but they involve the rights of other employees, the needs of other employees, the needs of the business and the fact that the union had apparently disassociated itself from the applicant. Now, again these are the type of - - -

PN52

JUSTICE GIUDICE: Is that a matter of inference?

PN53

MR WOOD: Yes.

PN54

DEPUTY PRESIDENT IVES: From what?

PN55

MR WOOD: From the fact that the union isn't here, from the fact that the union met with Mr Micallef of the appellant, that is the union, Mr Sean Lean met with Mr Micallef on - I will get the dates, I think it's 23 or 24 August - 24 August 2004, that led to a dispute, and there is evidence about this between the representative of the CEPU and the applicant. The applicant then dissociated himself from the union and the union explained to Mr Micallef through Mr Lean that it was no longer pressing this claim on behalf of the applicant.

PN56

Now, those are matters that a magistrate's court wouldn't take into account. They'd be totally irrelevant to the question of whether someone had been made redundant, the three issues that I have just raised with the Commission, because the question would just be, does this individual have an accrued right under the certified agreement, yes or no. But they are factors that this Commission should take into account when it's trying to balance collective rights with individual rights, when a dispute over the application of this sort of agreement does arise, and Commissioner Hingley didn't do that.

PN57

That leads to the second point we make which is at point 3 on page 2, which is, assuming our submissions in relation to the first point we make are not accepted, assuming the Commission either says Commissioner Hingley was free to act as if he was a magistrate or in fact he didn't act as if he was a magistrate, he acted as if he was an arbitrator of the dispute, assuming we lose on all the points I have just made, if one then looks at the legal test that Commissioner Hingley applied, it was the wrong legal test.

PN58

The legal test that he should have applied is whether or not there should be implied in a contract of this nature a term allowing reasonable relocation, a term allowing reasonable relocation. The question then becomes, of course, is this relocation reasonable. But that's not the term that he implied. The term that he implied is found at paragraph 57 and he says:

PN59

Location was an implied element of the applicant's contract of employment.

PN60

That is, there was no implied term allowing reasonable relocation.

PN61

JUSTICE GIUDICE: But you can't look t these things too forensically, can you? I mean, the circumstances were that the only relocation that was in contemplation was to Laverton and to say that this is some general proposition, some legal finding ignores the fact that it's a statement made in the context of a relocation to Laverton from Richmond.

PN62

MR WOOD: That is true, your Honour. But for the fact that the precondition to that statement was that Commissioner Hingley found that this applicant had a right to be at Richmond. That's what paragraphs 48 and 52 and 57 say. 48 deals with the evidence, 49 and 50 with a couple of authorities, and then 51 says:

PN63

In the instant case of this applicant I think it is reasonable to construe that the contract of employment implied that the job offered at the NHP was at the Richmond factory and on that basis the applicant accepted it. There was no Laverton facility. Conversely I find that there was at the time no implied terms of contract under which the employer could require transfer to Laverton or another site.

PN64

JUSTICE GIUDICE: What was put to him about the contract and implied terms of this kind?

PN65

MR WOOD: We said that in every contract of this nature there is an implied term allowing relocation which is reasonable.

PN66

JUSTICE GIUDICE: Yes.

PN67

MR WOOD: And there must be, I mean, it must be the case that the appellant having a factory on River Street, Richmond could move its factory over the other side of the river, to River Street, Hawthorn and not create a redundancy thereby. It can't be the case that there is a term of the contract that says that you are contracted to work at this particular factory at this particular street in this particular suburb. There must be an implied term that allows - - -

PN68

JUSTICE GIUDICE: Well, there might be but the question here was Richmond or Laverton.

PN69

MR WOOD: That's right, we don't have an issue with that. If the proposition is, of course you can be directed to move, but it's got to be reasonable, then there is no issue, but Commissioner Hingley led himself into error by not accepting that premise. He started from the proposition that any move was in breach of the contract.

PN70

COMMISSIONER EAMES: In the light of Mr Liu's particular circumstances.

PN71

MR WOOD: Well, he did go on to say that, Commissioner, he did go on to say that.

PN72

COMMISSIONER EAMES: He certainly focused on that in the decision.

PN73

MR WOOD: That's right, later on. But my point, and I don't want to over burden it, is that that question of whether the relocation was reasonable was predicated on a finding that any relocation was now allowed by the contract.

PN74

COMMISSIONER EAMES: So it's the words, or another site, that you are focusing on, yes.

PN75

MR WOOD: Or another site. If the decision had proceeded from the basis that of course the appellant could relocate its factory to another reasonable location, having regard to the circumstances of the individual, we would have no issue, but we started from behind the eight ball before we even got to the question of assessing whether the transfer was reasonable because the primary proposition which he couldn't have any transfer.

PN76

JUSTICE GIUDICE: But that's not the basis for his decision, is it?

PN77

MR WOOD: It's not the only basis but it's the starting base. It's the base in an engineering sense. It's not the base in the sense of what is the - - -

PN78

DEPUTY PRESIDENT IVES: Well, is that correct, Mr Wood? Isn't his decision essentially based on his assessment of reasonability?

PN79

MR WOOD: That's true, yes, essentially it is based on that but it starts from the premise that it's unreasonable to have any transfer - - -

PN80

COMMISSIONER EAMES: In the light of an earlier election not to go to Bayswater, but to stay at Richmond?

PN81

MR WOOD: Yes, that's right, but we don't take any issue with that. That evidence is in but it doesn't - we can't see that you can defend that earlier position. No matter whether this individual rejected jobs in Doncaster, Preston, West Melbourne doesn't alter the fact that in this contract the employer was allowed to transfer its place of business provided the transfer was reasonable. Now those other factors that you are referred to, Commissioner, might impact on the way in which one judges whether the transfer is reasonable, but the starting position has got to be that he doesn't have a right to stay in River Street, Richmond forever. He has got a right to work there or any other reasonable relocated place of work.

PN82

But then when one moves on to, I think the question that you are concerned with Commissioner, whether the relocation is reasonable in all the circumstances, we say the Commissioner fell into error again and we say that at point 3.2 and it's mostly - we mostly say that in point 4. That is, what happened was that Commissioner Hingley formed the view that it wasn't reasonable for this particular individual to relocate, notwithstanding that everyone else had to - I am sorry, that's wrong, everyone else bar one had. He formed the view that looking subjectively at this individual, that is looking at how this individual considered his own position rather than looking objectively at how a reasonable person would consider the applicant, he considered that the applicant had good reasons for refusing the relocation.

PN83

COMMISSIONER EAMES: The reference in the Act are family responsibilities and conventions and the like.

PN84

MR WOOD: Yes, one has to - - -

PN85

COMMISSIONER EAMES: It's also a basis.

PN86

MR WOOD: It was.

PN87

COMMISSIONER EAMES: It wasn't just the Commissioner's view.

PN88

MR WOOD: No, but he started, we say - he moves to an objective basis later on, but he starts from the proposition that the individual's own feelings and own views about whether the relocation is reasonable are very close to determinative.

PN89

COMMISSIONER EAMES: No, he says he thought they were right.

PN90

MR WOOD: He does say they were right, that's right, he does, more than determinative, correct, which is the issue that we take up at point 4 of our outline, because they weren't right when one looks at the evidence. What actually went on and I think when I said to your Honour how long I would take, I'd take about half an hour on the first two points, but this last point would take a bit longer. The reason it takes a little bit longer is I have got to hand up to you a summary of the evidence to develop the point I am making. Perhaps I can summarise the point and then go to the actual evidence.

PN91

What Mr Micallef said was completely contradictory to what the applicant said. The applicant said, I have got legitimate family responsibilities that can't be accommodated - what Mr Micallef said was that this guy wants a redundancy package at the start of business, that he's inventing or creating family responsibility issues in a piecemeal fashion, that is, he adds them in one at a time as each one of them is resolved or attempted to be resolved, and when it gets to the chance of a resolution, the applicant never tries to resolve them or, indeed, himself makes any effort to resolve them, that is, his focus, from the time he met Mr Micallef where Mr Micallef came into the appellant's business in the middle of 2003, to now, has been that he wants a redundancy package.

PN92

Now, if Mr Micallef's evidence is correct, and I will take you to it in a moment, then if Mr Micallef is believed - you don't have to believe him - but if he is believed then in answer to the President's question that his concern about family responsibilities or his issues of family responsibilities are correct or are right, to use Commissioner Hingley's judgment, it can't stand, because you can't have a witness who's not disbelieved, who - in fact, in Commissioner Hingley's judgment Mr Micallef is partially accepted.

PN93

COMMISSIONER EAMES: That was in relation to the 17 year old son.

PN94

MR WOOD: That's right, in relation to the 17 year old son, that's right. But you have to either accept Mr Micallef's evidence in which case you can't accept that the issue of family responsibilities is right or you have to disbelieve Mr Micallef, but they can't stand, the two versions, of events. They just cannot. You cannot have a witness who says, these things about another witness which totally undermine his version of events and credit and have this witness believed and still accept the other witness' version of events. It just becomes an issue, you have got to accept one version or the other.

PN95

COMMISSIONER EAMES: Well, he did that with the exception of the reference to the 17 year old son. He says that he found that a little difficult to accept, that a 17 year old person wouldn't be able to make their way to and from school, but in relation to the circumstance, the Commissioner came to the view that it did impact adversely on the family, the working of the - the combining of working family responsibilities, is what I am trying to say. That was the view he came to at the end of the day.

PN96

DEPUTY PRESIDENT IVES: Sorry, Mr Wood, does Mr Micallef's evidence directly contradict the substance of the claims of the applicant with respect to the reasons that he couldn't relocate?

PN97

MR WOOD: It depends what you mean by direct. It's a little bit of a lawyer's answer, but the way you can deal with a challenge to a witness like this, like the applicant, is to in effect go the whole hog, get a private investigator on his tail and track down the wife, mother, daughter and son, find out what they have been doing, find out what they do after school, before school, you know, try and speak to their doctor, all that sort of stuff, the sort of thing that used to go on in the divorce courts. Then you actually have what you would call forensically direct evidence to dispute what the applicant says and we don't have that and - - -

PN98

DEPUTY PRESIDENT IVES: Mr Micallef had a view about it, about - - -

PN99

MR WOOD: Sorry, that's right, Deputy President.

PN100

DEPUTY PRESIDENT IVES: No, that's fine.

PN101

MR WOOD: He had a view but the way in which we tackle the applicant's evidence is not through a private investigator to work out whether these facts are actually true. The way we attacked it is through credit because what we said is that if the family responsibilities of this applicant are really an issue then, (1) he wouldn't have demanded redundancy hundreds of times; (2) he wouldn't have demanded redundancy to set up a business; (3) he wouldn't have introduced, after he'd been told that he wasn't going to get a redundancy package, whether generally or to set up his business, he would have introduced his kids, his mother and his grandmother in successive order as issues that justified him getting a package, and if he had have introduced them in successive order and when ways of resolving those issues were put forward, he would have accepted them, but he didn't do that either, nor did he actually make any suggestions at any time about how his family responsibilities could be resolved. All he asked for at every stage was a redundancy package.

PN102

Now, on the basis of that evidence, if it's accepted, it doesn't have to be, you can't infer, you can't allow the applicant to say that the issue of family responsibilities was of overwhelming moment because the evidence from this witness inferentially and as to credit is all the other way. You actually have to - perhaps the best way to handle this is just - - -

PN103

COMMISSIONER EAMES: But you are in a position then of preferring - maybe preferring one lot of evidence against another.

PN104

MR WOOD: You have to, you just have to in that situation.

PN105

COMMISSIONER EAMES: That's what the Commissioner did, didn't he?

PN106

MR WOOD: Well, I think that's where we disagree, Commissioner, because that's what we say he didn't do

PN107

COMMISSIONER EAMES: He didn't prefer your evidence.

PN108

MR WOOD: I wouldn't be making this point - you see, I don't accept what Mr Micallef said. He said I don't accept his evidence, and he's making it up, I don't think any of this is true, then I wouldn't be making this point. That would be his right. But not only did he not say any of that, he accepted it. Perhaps the best
way to deal with it - - -

PN109

DEPUTY PRESIDENT IVES: But again, Mr Wood, I don't think Mr Micallef, unless you can point me to it, has said anywhere that what the applicant at the time was saying was untrue, did he? I mean, there were - if he did then, if he thought it was untrue, then why would there have been offers made in respect of some of those issues to alleviate those circumstances? It seems to be that the employer accepted the position of the applicant with respect to the problems associated with the move and that would seem to be borne out by the offers to go some way towards alleviating that circumstance.

PN110

MR WOOD: That's true in part, Deputy President. I will take you to Mr Micallef's evidence, but he did, in parts of his evidence he did think that these things were made up and they were untrue, and I will take you to that in a moment. Secondly, the answer to the second part of your question, is that it stands to reason that a person like Mr Micallef has to play the game to an extent. I mean, you have to actually go down the route a little way to see whether or not you can resolve these issues, and if you can't resolve them, then your suspicion that they're actually being made up is increased, which is what happened, because nothing would resolve these issues. Perhaps the best way of - - -

PN111

DEPUTY PRESIDENT IVES: Well, apart, I would suggest, from a claim by Mr Micallef potentially that the claims were untrue and that he wanted some evidence in support of them before he was going to do anything in respect of it.

PN112

MR WOOD: Well, yes, that's true, you could, that could have occurred and we could be into the route I described earlier of having, you know, I want some - - -

PN113

DEPUTY PRESIDENT IVES: He has got an unusual circumstance, for example, in these types of matters for an employer, for example, to require some letter from a doctor which substantiates an employee's claim in respect of taking care of an ill relative or something like that. That's not an unusual circumstance. That doesn't seem to have been in any way sought here. There seems to me to have been an acceptance by the claims of the applicant by the employer and then an attempt made, albeit unsuccessful, but an attempt made to alleviate some of those problems.

PN114

MR WOOD: That's true as far as it goes, but the question of getting - there wasn't really a question of getting a doctor in till very late in the piece, because the question wasn't really of illness of anyone apart from his mother - - -

PN115

DEPUTY PRESIDENT IVES: And I wasn't suggesting that that necessarily would have been a circumstance that would pertain here. I was simply saying that it's not unusual for an employer in similar circumstances to demand more than simply an assertion by the employee that he has a family responsibility that prevents him from moving. It's not unusual for an employer to say, well, if you are going to tell me that this is going to prevent you relocating, you are going to have to do a little bit more than simply tell me.

PN116

MR WOOD: That's true but for the fact that the - I will take you to in a moment - the opportunity for some corroborative evidence, if I can use that phrase, was limited given the nature of the problems that the applicant raised. I mean, for example, the question of the applicant's mother being ill, these discussions were going on from the middle of 2003 right through 2004 to July, August of 2004. Mr Micallef's evidence in the Commission was the first time any issue of the applicant's mother being ill was raised in the Commission. That's after 15 months on 1 October 2004, and that's the point I make. The first time redundancy is mentioned it's about a business. The second time it's about his daughter, I'd better just check that, it's either about his daughter or his son, but one of the other two, then it's the other child, then it's the wife isn't able to work, and by the time we get to the Commission, the mother is ill. So you can't - it's very hard to deal with someone who wants to, in effect, not resolve the problem and just chuck a few more chips on to the poker table each time you try and resolve it.

PN117

COMMISSIONER EAMES: Just checking out the Deputy President's point, the company was making offers to try and satisfy the circumstance with the after school care and offering to alter staff finish times and that sort of thing, which is really what his Honour is getting at, I think, that there appeared to be some negotiations taking part to try and fix this, but at the end of the day it wasn't.

PN118

MR WOOD: That's right, they didn't fix it and what I am trying to say, hopefully, go through this, is that unless you disbelieve everything Mr Micallef says, you can't come to the view that the kernel of the problems were legitimate because his evidence points all the other way, that they're not legitimate at all. They're actually being created to get what the applicant always wanted and wanted for 15 months, and that's really the simple point and if Mr Micallef's evidence was disbelieved in whole, well, I couldn't make that point, but it wasn't. Perhaps the best way to deal with it is in relation to Mr Micallef's evidence.

PN119

You will see the first reference there is to paragraph 39, which is:

PN120

The applicant told me he didn't want a redundancy payment.

PN121

He then refers to the need to drop his children off to school and collect them after school. Mr Micallef's evidence, did not recall anything about an ill mother. And then at paragraph 42, since 2003 on a number of occasions the applicant repeated he did not want to relocate and he wanted a redundancy payment. In oral evidence Mr Micallef said that happened hundreds of times in - sorry, hundreds - he says about a hundred times in the short time that he knew the applicant.

PN122

He says that he doesn't recall the applicant saying it would be impossible or his wife to drop his children at school or pick them up, she worked long hours in a milk bar, that wasn't said. Nor that he had an ill mother who he was required to care for and which prevented him from travelling to Laverton, and none of the attempts that were made to resolve the family issues that were raised related to the ill mother. The first time he was aware of that was at the Commission, after some - depends on where you take time zero from, but between 12 and 15 months after this issue arose.

PN123

DEPUTY PRESIDENT IVES: Well, he says he doesn't recall it being said. He doesn't say that it wasn't said previously.

PN124

MR WOOD: No, that's true but the applicant's evidence isn't to the effect that it was said.

PN125

DEPUTY PRESIDENT IVES: Right.

PN126

JUSTICE GIUDICE: Mr Wood, can I just ask a question about the applicant and his language skills. I notice that he gave evidence through an interpreter before the Commissioner. Is there any evidence indicating his language skills, apart from that?

PN127

MR WOOD: There is some evidence - perhaps I can identify the transcript references, but Mr Micallef said that - I will get the actual transcript reference - but it's something along the lines of he hasn't got fantastic English, but the real problem is that he speaks too fast and as long as you slow him down, you can communicate with him and we tendered some written communications in English by the applicant in relation to his written English, so that was our evidence, but I can get the paragraph. Paragraph number reference for Mr Micallef's evidence is paragraph number 1199. This is a more specific question about his language. It relates to that meeting that I have referred you to before, your Honour, which is the meeting in, I think I said 24 August, it looks like it's actually 26 August when you read the transcript, starting at paragraph number 1187.

PN128

Mr Micallef is asked some questions there about whether he understood what the applicant was saying in that meeting and I can read it out or I can let you read it, whatever is easier. What I might do, your Honour, is just get an extract, because I think it was a question that was asked of him through the evidence about the ability of the applicant to understand what was going on and he was cross-examined to that effect too.

PN129

JUSTICE GIUDICE: I suppose Mr Micallef's ability to understand the applicant would be one thing. Another issue might be the applicant's ability to understand Mr Micallef or anybody else or to readily communicate, put it that way, both ways.

PN130

MR WOOD: Perhaps I can deal with that issue by reference to all the evidence that - - -

PN131

JUSTICE GIUDICE: Yes, by all means, yes. I am just trying to ascertain whether there was any language issue that we would have to be aware of in looking at the evidence.

PN132

MR WOOD: Not from our perspective, your Honour, but perhaps I will just get the transcript reference with references to the statements.

PN133

JUSTICE GIUDICE: Yes, certainly.

PN134

MR WOOD: Then at paragraph 46, during a meeting after 23 July I recall the applicant raised issues because travelling to Laverton because of family responsibilities and what Mr Micallef says is that he didn't say that, because of the hours that he worked, it would be impossible for her to drop children at work or at school or collect them, and the offer made at that stage was that we would adjust his working hours to accommodate this, for example, by working 30 minutes earlier and finishing 30 minutes later and the applicant said that wasn't acceptable as he dropped his children at school and collected them in the afternoon and Mr Micallef said, well, I suggest you speak to your wife about those arrangements.

PN135

JUSTICE GIUDICE: So the last column, the one you have just been referring to, is that statement referrable to the meeting on 23 July?

PN136

MR WOOD: Yes.

PN137

JUSTICE GIUDICE: Well, you see, it says in the second column in the last paragraph:

PN138

Lin did not tell me that because of the hours his wife worked it would be impossible for her to drop the children off at school or collect them.

PN139

And then the next paragraph it says that he did say this.

PN140

MR WOOD: I am sorry, which - - -

PN141

JUSTICE GIUDICE: I am looking at the first page of the document you handed up. I can see the statement in the middle column, "Lin did not tell me" et cetera.

PN142

MR WOOD: I think the point that's being made is the subtle distinction between it being impossible or difficult for the wife to collect the children as opposed to what the current habits were, that is what Mr Micallef says, is that because the applicant hadn't said my wife works, he says, well, speak to your wife about arrangements that she can take some of that up and it wasn't raised that his wife was unable to do that.

PN143

JUSTICE GIUDICE: I see. Mr Wood, I am not too sure where all this is going. I know that you have been involved with some interchange with the other members of the bench, but it seems to me to be demonstrating that whatever the motive the applicant, for the entire period, said he just didn't want to go to Laverton.

PN144

MR WOOD: That's true.

PN145

JUSTICE GIUDICE: Nobody was under any illusions about that.

PN146

MR WOOD: That's true.

PN147

JUSTICE GIUDICE: That he claimed, although the detail of it may have come out at different times, but he claimed it was because of other responsibilities he had, presumably family responsibilities.

PN148

MR WOOD: Well, that's the bit we take issue with, that whether or not that claim was - - -

PN149

JUSTICE GIUDICE: Well, he certainly made the claim in July, didn't he?

PN150

MR WOOD: He made the claim in July, that's correct, in July 2004.

PN151

JUSTICE GIUDICE: When was the first time he raised family responsibilities of any kind?

PN152

MR WOOD: Perhaps the best way to deal with that is to go to the oral evidence because the oral evidence deals with it in a chronological fashion which starts from the first time Mr Micallef met the applicant. It deals with the discussions they had on the shop floor, it deals with discussions they had in a trip to see a client and then it deals with discussions that were had in Mr Micallef's office in early 2004.

PN153

JUSTICE GIUDICE: All right. I don't want to make proceedings any longer than they're going to be, but I would be interested to know when the question of family responsibilities first arose.

PN154

MR WOOD: It seems to be that it arose at least in August 2004 and Mr Micallef's evidence was that for that period, and it may have - I will just have to check the transcript - it may have arisen in February or March of 2004, but Mr Micallef's evidence was that it didn't arise initially because his overwhelming desire was to get a redundancy package. That was the concern.

PN155

JUSTICE GIUDICE: Well, if he wasn't going to transfer wouldn't it be reasonable for him to expect that he would get some kind of package? I mean, if his position was he couldn't move, to work at Laverton, is it so extraordinary that he would say that he wanted some sort of redundancy package provided for him to the agreement?

PN156

MR WOOD: No, it's not, it's not extraordinary. A lot of people take these opportunities when there are relocations, particularly when they have been long serving, to cash in their job and go and get a job elsewhere. It's not. But the point we make is that that sort of behaviour, unless it's anchored in some really legitimate industrial reason to refuse relocation, where relocation is reasonable, shouldn't be counted by the Commission.

PN157

JUSTICE GIUDICE: But what happened here was that the Commissioner heard all the evidence and decided basically that the applicant's position was a reasonable one. That's what it comes down to.

PN158

MR WOOD: That's true, your Honour, but the point we make is that - - -

PN159

JUSTICE GIUDICE: He made errors along the way?

PN160

MR WOOD: He made errors along the way initially. He failed to address himself to the correct test and then even on the test that he proposed for himself, he failed to make the evidentiary findings which were necessary for him to get home. He just had to find that Mr Micallef wasn't telling the truth at least in a large part of his evidence, he just had to. When Mr Micallef came to be examined at paragraph number 1181, when Mr Micallef is asked about his first meeting, he wanted a redundancy package. It says 25 months or so, that is my question, and it is obviously wrong. It should be 15 months or so:

PN161

- between him starting in July 2003 and October 2004, did Lin approach you on the factory floor, on the factory floor dozens of times with the same question that he wanted redundancy. It was usually his opening statement to me was to talk about redundancy and how he could get a redundancy. It was very much an open, continual, nearly every time I spoke to him on the factory floor, not all the time, the majority.

PN162

And then Commissioner Hingley asked him this question:

PN163

What were his words?---In some, most cases it was, you give me redundancy, I want redundancy, I am not going to Laverton.

PN164

Then there is a reference in the transcript to a meeting in July - I am sorry, I told you this, the oral examination chronologically, it doesn't - it jumps from July 2003 to July 2004 and Lin goes back, so perhaps if I could be forgiven for that. The redundancy being asked by Lin, and the union tried to support him, and Mr Micallef's evidence is that by July 2004 there was only one issue with regard to family life, and they were the children. I can definitely concur, there was no issue with the mother or the grandmother and that the only item which was raised with regards to the job, and at that point, in terms of the next page, page 3, you can see that redundancy had been asked by Lin and the union had tried to support him to some degree and come in and do a negotiation with us to try to see if they could resolve these needs, and they asked, they said the amount was around 30,000, we would consider 50,000 on a one off payment and nothing would be said.

PN165

Then go to the third column on that page which follows on from page 2, which is:

PN166

About this July - I am sorry, I call it July, it's actually August, isn't it - the August meeting. We then spoke about family issues because we were then looking to try and see how we could have him come over to Laverton and we spoke about family life and what Lin expressed, as if he had to do morning and afternoon care, there was a sum of about $14 a day and we stated to him that we would reimburse payments by the particular school.

PN167

So there is the issue raised, then resolved. Then Mr Micallef - I can't remember who asked this question, I can't remember if this was the President or the Deputy President, but there was a question about - I think it was the Deputy President asked a question about what Mr Micallef, whether he thought it was untrue what the applicant was saying, and here he replies that:

PN168

There didn't seem to be any efforts from the other side to take up any of the offers of the family variations that were trying to accommodate change. Redundancy was still required by Lin and we weren't offering a redundancy.

PN169

Then it goes on to the next day, this is the day without the union official, at about 8 am, the applicant comes in to see Mr Micallef slams a bit of paper on his desk with his finger pointed agitatedly at Mr Micallef and the piece of paper is in Mr Micallef's witness statement, it is exhibit FN6, and it's just an extract from the certified agreement which the applicant has circled and done a calculation, 16 years times two and a half weeks, equals and comes to a calculation of about 31,000 or so. Mr Micallef says he became very emotive and he stated again, as he'd done many times, that he wanted a redundancy and that was the amount of money he wanted on the redundancy, and then Mr Micallef said, after I again confirmed that there was no redundancies available, we, the company would only offer, as we had done the previous day, of trying to organise other family type issues. Mr Micallef's evidence, he became very agitated.

PN170

So then the conversation moves on to the family responsibilities. I beg your pardon, I withdraw that. now going back in the chronology about nine months to late 2003 or early 2004 and this is a discussion that happens when - a fairly rare event - when Mr Micallef, as the manager, is with the applicant in his car as they drive from Richmond to Tullamarine to see a client. Mr Micallef gave some evidence, this is in answer to a question of yours, Deputy President, previously that they had no problem communicating in the car, they had no problem - the applicant had no problem communicating to the customer when they got to Tullamarine and they had no problem communicating on the way back in the car.

PN171

As they are coming on the way back from Tullamarine they go round the big roundabout with the Australian flag at the top of Elizabeth Street and the applicant says to Mr Micallef, and this is the evidence:

PN172

So we opened up conversation on this particular needs that arise and he raised there about his children and he also said as we went into Victoria Street.

PN173

So they come down past the roundabout turning into Victoria Street:

PN174

I told the name of the other restaurant owned to somebody along Victoria Street, and as the conversation went along I got an understanding that Lin's needs were of his children and he wanted the redundancy to take care of some business venture.

PN175

And then Mr Micallef says:

PN176

I told him that we wanted all our people to move. He was very much a part of the relocation. We discussed something that the children relocate. I said, well, you know, there is other family duties that can take part in this relocation. I believe you have some responsibility in that.

PN177

And I think Mr Micallef's representative felt he was referring to the ability of the applicant's wife to take - play some part in the child minding duties. Then Mr Micallef gets asked about this trip in some detail which goes over the next page and he says:

PN178

Well, we offered him - we could come to some agreement of varying hours, an arrangement of some sort, that was unacceptable. It was only again back to wanting redundancy.

PN179

And then we go forward in time now to July 2004:

PN180

Just before this August 2004 meeting, he raised the issues - this is just after a barbecue where they are winding down the Richmond factory, he raised the issues again about wanting a redundancy and not wanting to relocate to Laverton. I made mention to him that I had, we had previously spoken of this many, many times and I reconfirmed that, you know, we were able to vary hours around, and I requested him that he should talk to his wife, even though -

PN181

I think this might get to your question, the President's question:

PN182

- even though I knew that his wife worked, I didn't know the extent of the hours as being discussed, and what we discussed in there was that I said to him that you should go and discuss this with your wife and then able to try and rearrange hours, you know, either starting, you know, starting 30 minutes later in the morning, we were flexible to try and arrange this and then come into later in to work 30 minutes later. Again the response was not to any conversation of positive and only back to one thing, one thing only.

PN183

What was that? Of redundancy only. During many of the negotiations I couldn't get past that barrier of our conversations.

PN184

He said we had offered Lin - he did not want to relocate to Laverton, he needed assistance in being able to obtain a job outside, that he found all over news and had been - would we assist him by supporting career counselling, career opportunities for outsourcing and opportunities.

PN185

This is again, I think, answering your questions, Deputy President's question:

PN186

There was no attitude towards wanting to take up the offer during those discussions? There was immediate refusal a number of times. He kept recalling back to the redundancy.

PN187

And then there is a reference to some other offers that were made. There was flexible hours which you could vary your hours around, I see it as a family, responsible, too in my family where children had to accommodated, I would like to believe it's part of the employer's responsibility. He was asked the question whether any comment about the applicant's wife and his mother, other than his wife worked, but certainly not of the mother. Then asked some questions about his son catching public transport and then again in response to your question, Deputy President, at 1342:

PN188

I don't know the exact movements of his particular family, but there may be - I would have thought more open responses to try to arrange discussions with us to try to come to accommodating arrangement between the son and going to school and so forth, whereas that has never been openly discussed with us, to try and end up with the result where Mr Liu or Lin could attend work and still have his family arrangements as well. So how far he has gone with them, whether he is able to do them, or there is accommodation, I can't concur, I have no way of confirming.

PN189

So that's really the answer to your question, Deputy President. But his suspicion that these things are being invented as a way to get to redundancy package, but he hasn't got to the stage of actually sending the private investigator around to check up on what the son, the daughter, the wife and the mother are doing.

PN190

DEPUTY PRESIDENT IVES: Yes, but it's your submission, is it not, that, I think I am quoting you correctly, that the Commissioner had to find that Mr Micallef wasn't telling the truth? Isn't that what you said before?

PN191

MR WOOD: Yes.

PN192

DEPUTY PRESIDENT IVES: I don't see where you had to find that in the circumstances of - - -

PN193

MR WOOD: To find that the family responsibilities are real and he focused on his mother, he has to find the mother is raised before we get to the Commission on 1 October. I mean, if it's a legitimate issue and he has spoken to the applicant dozens of times from mid July 2003, all through that year and then through the next year and the mother is then raised because the issues with the children are resolved, then you just have to make a finding one way or the other and the finding has to be either the mother was resolved - these were legitimate family - sorry, resolved. The mother was raised, these are legitimate family responsibilities, or they're not.

PN194

It actually gets worse because if you look at the applicant's witness statement in the Commission compared to his evidence, that the problems with his mother get worse when he comes to give evidence.

PN195

DEPUTY PRESIDENT IVES: Yes, we have probably done it to death, I think, Mr Wood.

PN196

COMMISSIONER EAMES: But you certainly say that paragraphs 56 and 57 of the decision don't address that issue?

PN197

MR WOOD: No. The finding would have to be that Mr Micallef is - he is, either mistaken or untrue as to either or both of the applicant's desire for redundancy package and the way in which the applicant raised his family responsibilities.

PN198

JUSTICE GIUDICE: But it goes further than that, doesn't it? Wouldn't he have to find that the applicant was a liar and that the paragraphs set out in paragraph 57 of the decision was a fabrication? You see, the Commissioner believed that statement. What you are saying is on the basis of Mr Micallef's evidence, the Commissioner should have found that when he made that statement the applicant was lying.

PN199

MR WOOD: That he was either lying or, if true, was only being raised at this stage in order to prevent a resolution of this issue occurring at an earlier stage, one of the two.

PN200

JUSTICE GIUDICE: Was it put to him that he was lying about this?

PN201

MR WOOD: No, it wasn't, no. But the other possibility was put to him, that was the point of the two pronged approach that we talked about earlier. You either just say this is untrue or you say the way in which this issue was raised means that being raised now and not earlier means that you shouldn't give it weight and it should have been raised earlier in order that the problems would be resolved.

PN202

COMMISSIONER EAMES: The Commissioner took another view and did give it weight. He referred specifically to it.

PN203

MR WOOD: He did take another view, but - - -

PN204

COMMISSIONER EAMES: He said it.

PN205

MR WOOD: We say that he had to give the applicant an out somewhere. He had to say there was - he either say Mr Micallef had to be believed or there is some reason sitting there in the ether that this serious issue about the applicant's mother was not raised by him in dozens and dozens of discussions directly with Mr Micallef or with his union for some reason. Now, if we had either of those two reasons in the decision, then I couldn't make this point. But you only have to put those propositions to see that you just can't on this reasoning, you can't come to that view.

PN206

Perhaps it might be a slightly strong submission, but perhaps you can't even come to that view on the basis of Mr Micallef's evidence. I know the Commissioner hasn't seen it and hasn't had the opportunity to test him, so perhaps that submission is a little bit strong, but given the weight of his evidence, there has to be a finding that there is either - Mr Micallef is making it up - sorry, three findings. He's making it up, he's mistaken or that there is some reason that these issues were not raised at the time and that - the Commissioner didn't find any of those things, and we would have - if that had have been put in argument, if he had have indicated that, you know, he was going to find that there was some reason that these issues weren't raised earlier, well, we would have had something to say about it.

PN207

JUSTICE GIUDICE: If you look at your submission in paragraph 4.4 of your outline, Mr Wood, which I know is very much an alternative position, but just taking that, why do you say that the applicant's position re the so called family responsibilities is untenable?

PN208

MR WOOD: It goes not to so much the problem of proof about whether or not there is in truth a mother, wife, daughter and son and not so much to the fact that he has got some responsibilities, whatever they might be, to those members of his family. But it goes to the issue of the way those issues were raised by the applicant on his own evidence. On his own evidence he didn't ever come into the witness box and say at any time - and he was cross-examined about this - when did you ever suggest a solution to these family responsibilities? When did you ever suggest that this is a way in which your daughter could be accommodated, or your son could be accommodated, when did you suggest perhaps he can go by train if you paid by train, when did you suggest that perhaps he could go to day care, because you thought he go to day care.

PN209

That's what 4.4 is directed to, is that the tone of the applicant's evidence, and perhaps untenable might be a little bit strong, but the tone of the applicant's evidence from his own mouth was that he was not interested in resolving any of these issues. These issues were a smoke screen or a blocker or a way home to get what he wanted, the package. They weren't really issues that he really in his heart wanted resolved. He didn't want them resolved at all. That's really why we make the submission that we say in 4.4.

PN210

Now, if Mr Micallef had been disbelieved and if there was some way of explaining the apparent inconsistency between the way the applicant raised issues about family responsibilities in the way Mr Micallef did, then I couldn't make that point. But there is an inconsistency, it wasn't resolved and it sticks out. It's the reason we're here, because we wouldn't be in the situation if these issues had have been raised, because they would have been resolved or if they hadn't have been resolved, we would have been going down the route the Deputy President talked about, well, let's look more closely at that issue, let's see if we can resolve that. But because they get introduced in this piecemeal fashion, a resolution is impossible. I think I went a little bit over time, I apologise for that. Those are our submissions.

PN211

JUSTICE GIUDICE: Yes, thanks, Mr Wood. Mr Champion, we might have a break for 10 minutes, I think.

<SHORT ADJOURNMENT [11.21AM]
<RESUMED [11.36AM]

PN212

JUSTICE GIUDICE: Thank you, Mr Champion?

PN213

MR CHAMPION: Thank you, your Honour. Might I hand up an outline of myself. I apologise, I have made an opening remark on one of the copies - which I have crossed out - inadvertently.

PN214

JUSTICE GIUDICE: Thank you.

PN215

MR CHAMPION: It was prepared before I knew what Mr Wood was going to say and therefore I gathered my thoughts around the grounds of appeal, 1 through to 8. Those grounds have now compressed, at least to some degree, into three grounds and some of what's in the written outline falls away and I hope the outline will speed rather than slow what I have to say to the Commission this morning.

PN216

JUSTICE GIUDICE: Yes.

PN217

MR CHAMPION: I intend to, rather slavishly following the written outline, try and respond as best I can to the grounds as Mr Wood has put them this morning. The first issue Mr Wood agitated this morning was that the Commissioner fell into error by acting as a magistrate, as it were, rather than exercising a broader range of arbitral functions. In my submission, at least the start of that, I deal with that point, although not in that language, in the submissions I put under ground 1 and ground 2 in the written outline which runs from paragraph 4 through until paragraph 8, but the answer at least in large part of my submission lies I the private arbitration case in that when, as the Commission does in the section 170LW matter, exercise powers of arbitration, it does not exercise judicial power, but may indeed determine rights as to legal rights and liabilities by reason of the parties having agreed so for the purpose - and I have copies of the private arbitration case with me, but I fear your Honours may have so many copies of that in your chambers you wouldn't be assisted by - I am seeing nods and I won't provide extra copies of it. but the passage I rely upon is set out at paragraph 5 of my written submissions and it's drawn from paragraph 30 of the High Court's decision in the private arbitration case.

PN218

Mr Wood's submission, and I don't mean to do him a vernacular injustice, but his criticism seems to be of Commissioner Hingley that he unduly confined himself as a magistrate or a judge might confine himself or herself in the approach, but in my submission the approach the Commissioner adopted ought not be criticised in that fashion, in that what the Commissioner did was first, characterise the dispute before him, as he had to do to ensure that it was a dispute about the application of the agreement. He did that in paragraph 39 of his reasons. He said, look, this is a dispute about clauses 14, 17 and 21 of the agreement, and he adopted, as he must, the text of the certified agreement as it tells of a guiding star in terms of how he dealt with the matter.

PN219

In my submission that's an entirely proper approach in a dispute about an application of the agreement to pay very close attention to what indeed the agreement says, and I just touch upon later in my submissions an observation of a recent Full Bench, in which it concerned what was known as the Susannah Lopez matter, the name was Media Entertainment Arts Alliance v ABC, and the Australian Broadcasting Corporation. In that decision, and the reference is in my submissions, the Commission noted that an outcome in the context of a section 170LW application, if the Commission were to come to an outcome inconsistent with the agreement, that outcome may be attended by error. So in my submission the Commissioner's close attention to the agreement was proper and non appealable. That's all I wish to say about the point about conducting himself as a magistrate as it were.

PN220

The next issue, as I understood Mr Wood's submissions, is that the Commissioner failed to give sufficient weight to what he called the nature of the industrial deal. When the notice of appeal was filed I understood that to be ground 4, and it really is an argument that the Commissioner misconstrued clause 21 of the agreement, and Mr Wood this morning developed his submissions around clause 21 in relation to this deal, and the NHPs position, as I apprehend it, is really that clause - it puts clause 21 to work for it and when Mr Wood talks about the nature of the industrial deal, and this is at paragraph 11 of my outline, what it says clause 21 does for it is that it accords to NHP both a right to direct all its employees to relocate Richmond to Laverton and that no redundancy payment would be payable to any employee who refused so to relocate.

PN221

It says it did an industrial deal of that nature. Where is that industrial deal to be found? It's to be found in clause 21 because NHP had it. In my submission what the Commissioner did, quite properly, and how I ran my case below, was to look at clause 21 and, as I say in my submissions, really three issues arise. Firstly, what does it say in its plain words, secondly, if there is some ambiguity about it, does any extrinsic material assist and, thirdly, and Mr Wood didn't develop this today and therefore I will be brief on it, well, should there be some implied term in clause 21 to the effect NHP alleges.

PN222

In my submission the answer is no on all three counts. What Commissioner Hingley did in paragraph 46, and this was the subject of some exchange this morning, was carefully to read clause 21 and give effect to it on its plain words. No discernible error in that approach in my submission. Conspicuously, in my submission, the clause simply does not say what NHP might hope it says. The Commissioner said it out in full at paragraph 42 of his reasons, and conspicuously absent, in my submission, is any right accorded to NHP to direct its employees to relocate, first, and any preclusion of the payment of a redundancy payment to any employee who does not relocate.

PN223

It's simply not there. NHP may have hoped it was there but it's simply not there. At trial I risked an analogy, and I might re-risk it very quickly, but in my submission, what clause 21 - it's a bit like a Christmas Day clause. If an employee works Christmas Day he or she will receive a bonus of $650. But in my submission that's a clause of an entirely different stripe from one that says an employee has to work or may be required to work Christmas Day. So in my submission Commissioner Hingley is plainly correct in paragraph 46 in his interpretation of the work.

PN224

If there is an ambiguity, yes, the Commission may have regard to extrinsic material. So much is true. Mr Wood referred to PKIU v Davies, Short v Hercue is another such case there built on the foundation of the Codelfa decision, in my submission, and I provide the reference in paragraph 14 of the submission. But the evidence - the first point to be made is really that if one looks to the extrinsic material only if there is an ambiguity as opposed to fill a gap. And in my submission what NHP really sought to do was not to resolve an ambiguity in this clause, but was to fill a gap and to write into it what wasn't there, which is what I put in paragraph 11 of my submission.

PN225

What they wanted to write into it is well illustrated by the order they sought below concerning the term. If I may take your Honours briefly to that. The respondent's outline is at tab 19, and at the very conclusion of that at the final page at 5.2 they make some submissions about a proposed order. The first one is that NHP has the right to direct employees, including the applicant, work at Laverton, and the second concerns an absence of redundancy. I beg your pardon, Laverton.

PN226

DEPUTY PRESIDENT IVES: I think it actually says Richmond, doesn't it?

PN227

MR CHAMPION: Yes, it does say that. But it counts little for what I said. It means Laverton, is the context we have. But in short, that's what they're trying to do by regard to - extremely material in my submission - is to re-write the clause to make it say what they hoped it might have said, but what on it's plain words it does not in fact say.

PN228

Can I say with regard to, there was an exchange this morning concerning paragraph 44 of the reasons and Mr Ryan's evidence. The first point about Mr Ryan's evidence is this, that in my submission it really only amounted to evidence of his subjective intention of what the agreement meant. That, as I say in paragraph 14 of my submissions, is not of assistance to the Commission. What Mr Ryan may have hoped the agreement would say must give way to what the words of the agreement in fact say and there is a caution in Codelfa, and although it wasn't played out before Commissioner Hingley in terms of an evidential play as to whether he should hear from Mr Ryan, there is a caution in Codelfa against proceeding evidence about the subjective intentions of the parties.

PN229

In the end, as Commissioner Hingley observes in paragraph 45, Mr Ryan answered a question from me along the lines of, or to the effect that he was satisfied that the agreement accurately recorded the deal that he had made. To the extent that paragraph 44 has some echo of a Jones and Dunkel point against Mr Wood's client, I recognised it would not have been appropriate for the Commissioner to draw a Jones and Dunkel inference against NHP on that point but in my submission the matter really goes nowhere in that if the union had come along, and I will develop the insinuations which were made about the union's support for Mr Liu in a moment, but if the union had have come along and there was an exchange in terms of as the evidence developed, I made a forensic judgment that it was appropriate that the union come along, but the Commissioner ruled against me on the basis that a witness statement had not been filed, if the union had have come along all the union would have been able to do would be to have given its subjective view as to what the agreement had said.

PN230

In my submission that's no substitute for reading the words of the agreement that this Commission is best placed to do. Then at paragraphs 15 and 16 the point I made at the trial, and I made with some apology that it was unduly nuanced, I don't believe now I should have apologised for it, but the best extrinsic material in my submission was statutory declarations that supported the certification of the agreement and those statutory declarations on both sides, the employer and the union, were to the effect, they're attachments to Mr Micallef's statement, were to the effect that there was no reduction at all, no reduction at all in employee entitlements.

PN231

As I apprehend how Mr Wood now talks of the industrial deal, it's that clause 21 in some ways takes away what clause 17 may give. My case is that clause 17, properly construed in the circumstances of this case, entitled Mr Liu to a redundancy. As Mr Wood would have you construe clause 21 it detracts from the clause 17 rough. That's an interpretation not to be preferred because it would be inconsistent with the extrinsic material. The objective extrinsic material, namely the statutory declaration. Mr Wood didn't talk about implying a term, but my submissions at paragraphs 17 and 18, yes, it is open to imply terms into certified agreements, the Commission would be slow to do it. The circumstances are such that no term should be implied into the agreement of a type that NHP would like to be implied, namely that it has a right to direct its employees to relocate or that an employee such as Mr Liu who declines to relocate would be denied a redundancy package calculated in accordance with clause 17. That deals with the nature of the industrial appeal, an appeal which Mr Wood developed this morning.

PN232

The next ground of appeal, your Honours, Mr Wood put it in terms of getting the legal test wrong this morning. That was the banner he put it under. He then - the debate focused on the issue of really what term would be implied into the contract of employment about relocation and that, when the notice of appeal was filed, was ground 3 and my submissions about ground 3 are set out at paragraphs 19 through to 27 of my outline. Mr Wood here fastens on to, I say out of context, a clause in paragraph 51 or another site and Deputy President Ives noted that this morning and the first sentence at paragraph 57, namely:

PN233

On all that was before me I find that location was an implied element for the applicant's contract of employment to say that there was an error concerning the implication of the term.

PN234

Your Honour, the President, asked a question of Mr Wood about, well, what was put to him about this below, and I did put some things to Commissioner Hingley about this below, but in my submission the touchstone is reasonability, if I can borrow Deputy President Ives' words this morning. What I put below was that the touchstone was reasonability. The series of cases, three of which, United Rubber, the Target decision and the Dick Smith decision all touch on reasonability or reasonableness being the touchstone and read as a whole in my submission Commissioner Hingley applied himself appropriately to that test, namely, whether it was reasonable in the circumstances to expect Mr Liu to relocate from Richmond to Laverton.

PN235

When I say, looking at the decision of the Commission as a whole, the Commissioner's consideration starts really at about paragraph 48 and he quite rightly accepts what he calls obiter, but I say it may even be part of the ratio of the United Rubber decision, about location being part of the job. He sets out the correct principle at paragraph 49, no issue can be taken with that. Then I took him to the extract from the Law of Employment, that's the appeal book 10, and I took - that really - and the law is to the effect that the contract cannot be silent as to the place of employment. If it is silent the law will imply a term. But each case turns on its particular facts and merits, that's what the Commission says at paragraph 50, and that's right.

PN236

Then the leading case referred to in Mack and the Law of Employment, is a case of Jones and Associated Tunnelling, it's an English decision, and I go to that in paragraph 21 of my outline, and it's at appeal book tab 11. The terms being implied is that which in all the circumstances the parties, if reasonable, would probably have agreed to had they directed their mind to the problem. In our case below, and I don't read Commissioner - in my submission it would be taking an inappropriate find to what Commissioner Hingley says to read his decision this way.

PN237

Our case below was not that Mr Liu had a right to resist relocation from one side of River Street, Richmond to the other side of River Street, Richmond. That was not how I put it below. But it's a matter of degree, and the cases all emphasise that it's a matter of degree, as the touchstone of reasonability about it. The conundrum of this case in some ways, your Honours, was this, that finally, if he were directed to go to Abbotsford, he could not complain. It seems to me that if NHP sought to send him to Ballarat there could be no suggestion that he had to go. Laverton had to be located as an appropriate point on the spectrum. It was 24 kilometres away and it created very real issues, as Mr Liu said, in terms of the Box Hill to Laverton commuting, underlined and underscored by his particular family responsibilities.

PN238

But the touchstone of reasonability, a nice statement of it, your Honours, in my submission, is that found in P&O Logistics, a decision of SDP Williams and I set out the passage at paragraph 23. That's the test that, if it's unreasonable, an employer has no right to send. In my submission when you read the discussion as a whole what Commissioner Hingley is quite correctly doing in my submission is trying to locate this case in the circumstances that this case has at the correct point on the spectrum. He considers Dick Smith and the decision of Commissioner Raffaelli in that decision, he considers Target Australia and the decision of SDP Watson in that case.

PN239

But then he really comes back in paragraphs 56 and 57, to weigh it all up, and on the touchstone of reasonability he came to the view that it was simply not reasonable to expect Mr Liu to relocate to Laverton. So my submission is that Commissioner Hingley got the test quite right when you read his reasoning in its totality, the loose clause in paragraph 51 ought not be given undue weight. But even if he were mistaken the reasons amply demonstrate that he formed the view that it was simply not reasonable to expect Mr Liu to relocate.

PN240

Now coming to, there was some exchange about what a subjective and objective test about what was reasonable and Mr Wood, as I understood him, and I hope I don't do him an injustice, seemed to me to suggest that the Commissioner had erred by in some ways just saying, well, if Mr Liu says it's unreasonable, that's the end of the matter. In my submission, plainly the Commissioner didn't do that. He did try to come to an objective assessment of what was reasonable having regard to NHPs situation, Mr Liu's situation and all the particular circumstances of the case. That's what he's doing in paragraphs 56 and 57 of the reasons.

PN241

The Commissioner articulates in those paragraphs, in my submission, and I set this out at paragraph 26 of the written outline, the reasons to which he had regard in forming the view that it was not reasonable to expect Mr Liu to relocate. Section 93(a) is significant for him and the family responsibilities, and the Kellogg Brown Full Bench had something to say about that recently. The increased distances in travel times were plainly a factor for him and he says as much in paragraph 54, as was the 1988 circumstance that there was evidence to the effect that Mr Liu had a disinclination to travel and when he'd taken this job on in 1988 that was a factor that was important to him, and from paragraph 51 of the reasons that is something that Commissioner Hingley was entitled to have regard to.

PN242

So I reject a submission, if the submission be put that what the Commissioner did was simply adopt the subjective perspective of Mr Liu. In my submission he did not do that and the words that your Honour, President Giudice took Mr Wood to this morning, I believe he was right, the rider at the end of paragraph 56 makes it clear that all the Commissioner was doing was he accepted in the end, he accepted Mr Liu's evidence about those issues as he was entitled to do. In my submission once it is established that Commissioner Hingley applied himself to the correct test, i.e. was it reasonable to expect him to relocate, Mr Liu to relocate from Richmond to Laverton, having identified correctly the principle. He had a discretion as to what - he had to form a value judgment, exercise a discretion within the ambit of that principle.

PN243

There may be different opinions of what was reasonable in the circumstances, but in my submission it was plainly open to him on the evidence before him to find it was not reasonable to expect Mr Liu to relocate and consistent with the very well known Coal and Allied, House v King principles which apply on appeals. Once the Bench is satisfied that on this issue the Commissioner is dealing with a discretion, there has to be an error shown in the exercise of that discretion. He has accorded some latitude. If it were open to him to make the finding that it was not reasonable, the fact that any member of the Full Bench as presently constituted may have come to a different position is not sufficient to roll or quash the decision if that were open to him.

PN244

The next grounds, and what Mr Wood spent quite a deal of time this morning dealing with, were the credit and family responsibilities issues. It's ground 5 and 6 of the original note to appeal, in my submission, starting at paragraph 28 of the outline.

PN245

JUSTICE GIUDICE: Just before you get to that, can I take you back to this issue about the inference to be drawn or not to be drawn concerning the agreement. Did I understand your submission to be that - I think part of it anyway is that there is no ambiguity in the agreement - but what do you say about the point itself? Do you concede that it couldn't be that an inference could be drawn against Mr Ryan's company?

PN246

MR CHAMPION: Yes, I do. I do concede that. There is an echo of the Jones v Dunkel point, was - - -

PN247

JUSTICE GIUDICE: Yes. Well, in any event, I think the point made by Mr Wood was that the CEPU isn't really in the company's camp.

PN248

MR CHAMPION: I am sure they would sternly agree. Yes, I concede that point, and my answer to it is that I say it doesn't take Mr Wood anywhere.

PN249

JUSTICE GIUDICE: Yes, I understand, yes.

PN250

MR CHAMPION: I do make that concession.

PN251

JUSTICE GIUDICE: Yes.

PN252

MR CHAMPION: I turn now, subject to any other questions, to the family responsibilities issue in the Micallef-Mr Liu contest as it was set up. Firstly, can I preface this. Your Honour, President Giudice asked a question about whether English issues came up. Can I just briefly give the Commission two transcript references. Firstly, someone identified this morning quite correctly that Mr Liu gave his evidence via an interpreter. At the commencement of his re-examination I really, to give the Commissioner a first hand appreciation of his English, engaged in an odd exercise, I was a bit unsure of it at the time, asking him some questions directly in English. That deteriorated into a shemozzle, as I sensed it might, and that runs in the transcript at point 1041 and immediately thereafter and the other transcript reference I take the Commission to is at point 1318, which is part of the transcript dealing with me cross-examining Mr Micallef, when I put to him, as it were, that English difficulties may be affecting the quality of the communication, Mr Micallef didn't really agree, didn't agree with my proposition that communication issues - - -

PN253

JUSTICE GIUDICE: What paragraph is that?

PN254

MR CHAMPION: Point 1318, your Honour, on the morning of day two.

PN255

JUSTICE GIUDICE: Yes.

PN256

MR CHAMPION: Just a brief check of the references I referred to. Yes, I put a question about it affecting the quality of communications and in the end, he agreed:

PN257

I wouldn't say Mr Liu has the best of the English language or being absolutely fluent, but to my mind I have - as I have said a number of times, I do not having any problem with meaning or understanding his English.

PN258

So that was the airplay language got, as it were.

PN259

JUSTICE GIUDICE: Yes, thanks.

PN260

MR CHAMPION: But Mr Wood almost presses it so far this morning, as I understand it, that the Commissioner was bound to outright disbelieve one of Mr Micallef or Mr Liu in respect of this. I disagree with that proposition. Mr Liu was cross-examined for the best part of a day concerning his domestic arrangements and what he had said down near the Elizabeth Street roundabout and so forth, but in the end, in my submission, and I put this at trial, the attack really was on peripheral issues, peripheral issues. In the end the factual is fine, the factual heart of his case remained intact as it had to, namely that he had a primary school aged daughter, he had a secondary school aged son, he had a sick mum and his wife worked in a mixed business very long hours which meant he did the child care.

PN261

They were not complex facts and whatever he said to Mr Micallef about those things, really in my submission was at the periphery of the case, not at its heart. President Giudice put a question to Mr Wood, well, was it suggested that, you know, he didn't have this primary school aged daughter, he didn't have this son, he didn't have the sick mother, he was lying about it, and it wasn't put in those terms and it couldn't be put in those terms and in my submission, unfortunately I don't see Mr Wood's table of any great assistance to the Commission. It was these core matters, core matters which were germane to the determination of the dispute.

PN262

What I did in cross-examining Mr Micallef, and it's at point 1330 to 1339 of the transcript and I refer to at paragraph 32 of my outline, is that I put to him squarely that he couldn't contradict the factual spine - I didn't use that language, that's pure legalese - but he couldn't contradict Mr Liu's central claim about his family responsibilities. And, your Honours, if I can ask you to do a couple of things at once - - -

PN263

JUSTICE GIUDICE: We will find that difficult.

PN264

DEPUTY PRESIDENT IVES: Is this a walk and chew gum, is it?

PN265

MR WOOD: Paragraph 57, there is the extract from the written evidence, exhibit C4, and then looking at what Commissioner Hingley saw fit to extract of that at paragraph 57 and not quite in terms, but close, from about point 1333 of the transcript, I took Mr Micallef to what I took to be the guts of this, the heart, the factual spine of this and when he said, at 1333, I say:

PN266

And when he says his wife does work in a milk bar and works long hours in a milk bar, you can't say whether he's right or wrong, I have no way of proving it. Similarly you say about his mother, you gave evidence yesterday, I think, in your statement, he says his mother is 82 and that she is unwell and that he cooks for her. You say he has never mentioned those issues to you, no?---No, I am surprised they haven't been raised earlier.

PN267

But you have no basis, at 1335:

PN268

But you have no basis to say to this Commission that it is not the truth that he has an 82 year old mother?---No, I can't. He says Mr Liu has responsibilities towards her, I can't deny it, I have no way to challenge that information.

PN269

Well it might be said by Mr Wood he's in a difficult situation, to put a private investigator on the trail. In the end the evidence before the Commissioner was concerning these foundational claims, I have a sick mother, I have a daughter who I drive to school and I pick her up, and there was no contest there, and in my submission, once that factual core of Mr Liu's evidence remains intact, the rest falls away. But in any event Commissioner Hingley grapples directly with this issue. In my submission in paragraph 56 where Commissioner Eames took Mr Wood to - there has been some slippage in the language - Mr Micallef's evidence was that the claimed responsibilities were exaggerated, so this morning they were either created or invented, but the Commission - in my submission, Commissioner Hingley quite properly grappled with this issue. He conceded some grounds to NHP about the 17 year old son, but then he waved the competing evidence of Mr Liu against that and he formed a conclusion on that.

PN270

So in my submission it was plainly open to him to do what he did and there was no factual necessity in a case like this to find that someone was lying and someone was not lying. In the end the contest in my submission is about tangential issues, not about the gravamen of the dispute. Can I just touch very briefly on the insinuation that the union has abandoned Mr Liu. That was an insinuation at trial. In my submission, the exchange I mentioned a short time ago when I sought to call a union witness but was ruled against appears at point 1416 to point 1431 of the transcript and that late approach was made on the basis that the evidence had taken a particular turn, but in the end, in my submission the union had - there shouldn't be a Jones and Dunkel point against Mr Wood's client, but the union could not take it any further. The union could not advance the issue of the actual words at clause 21 beyond giving evidence of the union official's subjective intention about things and that was not going to be of assistance to the Commissioner.

PN271

Subject to any glaring omission that appears to the Full Bench, they're the matters I wish to put on behalf of Mr Liu.

PN272

JUSTICE GIUDICE: Thank you, Mr Champion. Anything in reply, Mr Wood?

PN273

MR WOOD: Perhaps briefly, thank you, your Honour. In relation to the first issue about how the Commission approaches its task and of section 170LW, I think we're at all fours that what the Commissioner is doing is arbitrating and that it can have regard to existing rights when it arbitrates and I think I said that can be a predominant consideration. I think we agree with one another. The point that we made, and I think my learned friend didn't really deal with it, is it was the only consideration and a fair reading of the decision shows it was the only consideration. As to the subsidiary point about what the Commissioner failed to have regard to, it's not right to say that he didn't need to have regard to extrinsic evidence because clause 21 is not ambiguous. Well, it is ambiguous.

PN274

That would really be a decision to justify the facts. That is, a decision that's not ambiguous to justify the reasoning that the Commissioner went through. One had to look at it the other way. It is ambiguous and you do admit the extrinsic material. Then my learned friend said the extrinsic material is not objective, it's subjective. He said that at the beginning in relation to Mr Ryan and at the end he said it in relation to the union officials. Well, in relation to Mr Ryan the evidence at 1481 to 1482 and then 1483 to 1484 is objective evidence. He gets asked a question about what he says what he says. In his statement he says:

PN275

As far as the alleged point was concerned it was accepted by ETU and the employees that the relocation would occur and it would not result in any redundancies.

PN276

That is subjective evidence, opinion evidence. It's not admissible. So the question gets asked of him about why he forms that opinion and he gives his answer, at 1483 and 1484, and his answer is, there has been a year of negotiations, I have been in all of them, and this is what we said and this is what the union said in response. It was made clear that the company was relocating its manufacturing facility to Laverton, that all the current employees and skills they possessed were still required, that there were no redundancies because the jobs had not disappeared in any way, shape or form. And the question:

PN277

And did any one of the union representatives that I have just mentioned,
Mr Sharp, Mr Rowell, Mr Flannery, Mr Black, Mr Prasser, ever quibble with you or disagree with that proposition or suggest that there should or would be redundancies?---No, not to my recollection.

PN278

Now that's objective evidence about the negotiations. You can take what you will from it. You might not take the view that we take about what that means, but that's admissible extrinsic material that the Commissioner should have had regard to.

PN279

JUSTICE GIUDICE: Why is it admissible, in terms of the Codelfa - - -

PN280

MR WOOD: Because it's the objective background to the agreement, that is, the most important objective background, the negotiations, and it is objective because it's simply setting out what each party said to one another, and over 12 meetings the company said this is the position and the union never responded. That is, it didn't quibble, it didn't say no, that's not the position, it didn't say the position is something else, it didn't say redundancies will apply. That's objective evidence. No one is giving their opinion of what the effect of what the agreement is.

PN281

JUSTICE GIUDICE: Well, why wasn't it put in clause 21?

PN282

MR WOOD: I beg your pardon?

PN283

JUSTICE GIUDICE: Why wasn't it put in clause 21?

PN284

MR WOOD: Why aren't the statutes drafted properly, why do contracts have holes in them, why do industrial agreements - why does the Commission have a function under 170MD(6) in relation to resolving ambiguities in certified agreements? Because the nature of committing agreements to writing means that not every aspect of the actual intention is committed to writing. That's why we have a rectification process in civil courts in relation to contracts, to try to give effect to the actual intention. Of course, that's one view, you can say clause 17 should have been amended and it should have had the introductory words, subject to clause 21, or it might have even gone further and said it should be noted that redundancies are not payable if any employee is directed to relocate under clause 21, but the amounts payable under clause 21 are payable instead. We wouldn't be here. But that really gets round to the issue, your Honour, because unless you find that there is no ambiguity, which we say you can't, you have to get driven to the extrinsic material. Once you find it is objective, you have to take it into account.

PN285

You can't say, oh, I wish the parties had have put all this in writing. If that was the test you'd never admit any extrinsic material. And the suggestion my learned friend makes, I really don't understand about you can't look at this material but you can look at the statutory declaration. What is it looking at the statutory declaration? The no disadvantage test isn't measured against the previous certified agreements. It's measured against the award. There'd be nothing in the statutory declaration - - -

PN286

JUSTICE GIUDICE: But isn't there a requirement that it be demonstrated that the terms of the agreement were adequately explained?

PN287

MR WOOD: Yes, and - - -

PN288

JUSTICE GIUDICE: And the statutory declaration indicates that the particular term you allege or the construction you suggest was part of the arrangements?

PN289

MR WOOD: Can you just repeat that, your Honour?

PN290

JUSTICE GIUDICE: Well, the particular term that you allege that in effect relocation was compulsory, is there any evidence that was explained to the employees other than simply by the production of the agreement in the terms presented for certification?

PN291

MR WOOD: There is evidence from Mr Ryan about the statutory declarations being presented with the agreements of certification and around - I will get the correct date for you - it's around November 2003, that the union officials that I have referred to, or some of them, met with the employees in the car park outside of the factory and explained the agreement to them. Now, that's - - -

PN292

JUSTICE GIUDICE: But is there evidence that they explained that clause 21 meant that relocation was compulsory?

PN293

MR WOOD: Well, yes, by inference. That is, there is not direct evidence of what went on in the car park between the officials and the members when the meeting was held explaining the agreement, but there is evidence that the negotiations went on for 12 months both at the organising level and at the delegate level and the delegates were communicating with the members on the shop floor about what the agreement was trying to and did in fact achieve. It strikes us as quite odd that one would have regard to the statutory declaration which complies with the requirements, so it should be assumed that the agreement was adequately explained if the statutory declaration says that, there is no basis for going behind it. We would prefer that, or we would draw some inference from that, but not draw any inference from Mr Ryan's uncontradicted evidence about what the objective understanding in the negotiations was.

PN294

COMMISSIONER EAMES: The Commissioner states in his decision, on all that was before me, he came to the view that there was an implied position here in relation to location at Richmond, so that therefore there was an entitlement to a redundancy payment.

PN295

MR WOOD: That's a contractual right, yes, that's right. But we would say that that contractual right has to give way to this right in the agreement, that is if - there is no right in a contract for redundancy. There is only right under the award and under the certified agreement and if any particular statute applied, under statute, but no statute applied. So the parties are free to jack up the redundancy levels or reduce them as far as they like and what we say the deal was, was that redundancy levels stay the same but in this situation, this relocation, it doesn't apply. Now, that's something the parties are entitled to do. It doesn't really matter what the contractual term is because there is no entitlement under the agreement and that's the only way you get your entitlement, if we're right

PN296

The next point my learned friend made was about the legal test and I don't think I need to repeat myself in relation to that. We accept that the legal test is as my learned friend said, that that wasn't the test that was applied at least at the beginning. We accept that the rest of reasonableness was applied after the Commissioner came to the view that you have just expressed, yes, Commissioner. After he came to the view that you couldn't relocate, he then applied the test of reasonableness but that's the error we identify as an error that my learned friend doesn't really deal with.

PN297

In relation to the last point, and perhaps the most substantial point, the issue about Mr Micallef and the applicant. It's not fair to say that Mr Micallef's attack was only peripheral. It was attack as to credit and credit is important when assessing witnesses. You can't just assume that someone who gets into a witness box and affirms or swears on the Bible or Koran is telling the truth. You have to be able to challenge it, and one of the most important ways of challenging it is by credit, and that's what we did. Now, if that's unacceptable and if it doesn't go - if it's unacceptable but challenged by way of credit, then that's - it's not fine, but you have to - the upshot of that is that people in this situation would be driven down the route that you have identified, Deputy President, that is, we will be moving towards objective direct material and a lot of that material will only be gathered in fairly unattractive ways.

PN298

It's not going to be that easy just to substantiate - sorry, to challenge a person like the applicant's position without gathering that evidence in some, well, perhaps fairly unattractive is too strong but in ways involving private investigators. It's not as simply as - - -

PN299

DEPUTY PRESIDENT IVES: Yes, I don't think I was really suggesting that, Mr Wood. I was simply saying that I didn't at the time quite see that what you were putting forward as an attack on the applicant's credit was in fact that and that it seemed to me that Mr Micallef, by his actions, accepted the credit of the applicant, which was really the point I was - - -

PN300

MR WOOD: Well, forgive me, Deputy President, but it is the point my learned friend is making. He is saying that this type of attack on credit is peripheral and the upshot of what he says is if this type of attack is not allowed and not taken seriously, and full weight not given to the legitimate inferences that can be drawn from credit attacks, then inevitably we're going to be drawn into direct attacks which will drag us down the lines of divorce courts. That's where we will be in these sorts of matters. Now, one has to give weight to credit attacks and one has to look carefully at credit and one has to draw all the inferences that one can properly draw from attacks on credit, or else those more subtle measures of challenging a witness will be displaced by much more aggressive and unattractive ones.

PN301

COMMISSIONER EAMES: And you say because the Commissioner favoured the case of the applicant and made no reference to Mr Micallef and his evidence he's in error?

PN302

MR WOOD: That's right, that's what we say, that he was bound to assess Mr Micallef's credit or find some way of resolving what was apparently a conflict on the evidence. Now, having done - or finding against the applicant in relation to his story. But having done none of those three things, you can't just imagine that Mr Micallef never came forward to give evidence.

PN303

COMMISSIONER EAMES: And you say the last sentence in paragraph 56, to quote the Commissioner:

PN304

I am satisfied the applicant had reached the conclusion there were no ameliorating options before him, and I believe that he was right.

PN305

MR WOOD: Well, it really turns, Commissioner, on what are reasons? Are reasons just a recitation of a conclusion in the form of reasons, or do reasons actually have to mean something?

PN306

COMMISSIONER EAMES: You say that's how you spell that?

PN307

MR WOOD: Well, more than this, but he's got to make a finding that Mr Micallef said these things, that these issues of family responsibilities were never raised, that they were raised in a piecemeal fashion, there was never any attempts to resolve them and that the issue of the mother was never raised at all for 15 months. Now, then the Commissioner has got to say, well, the way I get around that is this, that is, there were language difficulties on behalf of the applicant and he couldn't express it, or that he didn't feel that he could put forward these reasons because they were of a personal nature. Whatever the reason might have been there had to be a reason to come forward to contradict Mr Micallef's view and it never came forward, and look, my learned friend just brushes it off as if it's not a big deal. He just says, well there is nothing in this table of evidence, I don't really have to deal with that, there is not much on it, because you didn't attack us on the core.

PN308

Well, we accept we didn't attack the applicant on the core for the very reasons that I have indicated and we attacked him by way of credit and we're entitled to have our attack on credit taken seriously and it wasn't. In relation to possible ways in which the apparent inconsistency can be explained, the President asked questions about the applicant's ability to understand English, my learned friend has given us some transcript references, I can give you the complete references. We already gave you 1199 but it's actually 1198 to 1199, 1223 is another reference, 1279 to 1283 is a third reference. My learned friend referred to paragraph 1318, it's actually 1317 to 1318, they are the transcript references.

PN309

In Mr Micallef's own evidence, paragraphs 53, 55 and 59 deal with the issue, and 55 especially deals with the point the President made, that is, was the understanding one way or was it both ways? Paragraph 55 makes it clear that it was both ways. Then exhibits to Mr Micallef's statement, FM8 and FM9 are composites and descriptions of the skills that one has to have to have the position of the applicant and they include communication and the evidence in relation to those exhibits is that the applicant was tested on his ability to communicate, and then FM6, paragraph 58 of Mr Micallef, exhibit W2 and W4, various pieces of evidence which show the applicant has the ability to communicate in writing.

PN310

I think that's all I need to formally say - I am sorry, apart from one matter I think those are the submissions. And we draw attention to paragraph 59 of the Commissioner's decision where he said:

PN311

I find that the job at Laverton in respect of the applicant was not an acceptable one and was irreconcilable with his family responsibilities.

PN312

We make the same point that we've made about the attack on credit which would go to the finding at paragraph 59. Those are our submissions in reply, unless there are any further questions. There is one issue about the form of relief that might be granted if the Commission was in our favour, or indeed, against us and that relates to the actual position of the applicant at the moment. There is a dispute between the parties as to the applicant's status, as it were, and the ability of the respondent to withdraw its direction to move to Laverton and to apply the applicant to keep working at Richmond. I am not sure that that necessarily needs to be raised today. It may flow from whatever order the Commission makes. I just mention that. Yes, I think my learned friend would prefer to wait for a decision before we deal with that issue.

PN313

JUSTICE GIUDICE: Thanks. If it's possible to do so we would like to give an indication of the outcome today, but in order to do that we will need to adjourn for about ten minutes. Could we ask for you to wait until about ten to one and we will see if we can reach any conclusions. If not, we may have to simply adjourn and reserve our reasons.

<SHORT ADJOURNMENT [12.39PM]
<RESUMED [10.50PM]

PN314

JUSTICE GIUDICE: We are in a position to give a decision in this matter. This is an appeal for which leave is required against the decision and order given and made by Commissioner Hingley in Melbourne on 6 December 2004. The Commissioner's decision and orders were made pursuant to clause 11 of the NHP Electrical Engineering Products Pty Ltd Enterprise Agreement 2003. They concerned a dispute between NHP Electrical Engineering Products Pty Ltd, a company, and one of its employees, Mr Han Jan Liu, concerning the relocation of the company's operations from Richmond to Laverton. Mr Liu lived in Box Hill and refused to transfer to Laverton and sought a redundancy payment.

PN315

Commissioner Hingley agreed with Mr Liu and made orders to the effect that he should not be required to change his work location and was entitled to a redundancy payment under the agreement. The appeal is brought pursuant to section 45(1)(b). The Commissioner's decision is a discretionary one and cannot succeed in the absence of a demonstrated error. There were in substance three grounds of appeal. The first was that the Commissioner failed to take relevant factors into account. The second ground was that the Commissioner failed to apply the true legal test as to relocation in the correct manner. The third ground was that the Commissioner made errors in relation to the way in which he dealt with, and it was alleged failed to take account of, the evidence of a Mr Micallef as to conversations Mr Micallef had with Mr Liu concerning Mr Liu's family responsibilities and other matters. It was submitted findings should have been made as to the credit of the two witnesses.

PN316

Turning to the first ground a number of factors were referred to under this heading. The first was that the Commissioner erred in his construction of clause 21 of the agreement and paragraph 44 of the decision was relied upon. It's not necessary in this oral decision to refer to the terms of clause 21. We do not think that the agreement in clause 21 or elsewhere was ambiguous in a relevant sense. We agree with Commissioner Hingley's conclusion in paragraph 46 of his decision that clause 21 does not confer a right on the company to require that all employees relocate to Laverton. There is no ambiguity and therefore the evidence given by Mr Ryan as to which a question of corroboration was raised is not cogent.

PN317

The possibility that an inference adverse to the company may have been drawn from its failure, if failure be the right word, to call a witness from the union party to the agreement, the CEPU, to corroborate Mr Ryan's evidence is not of great significance. Compulsory relocation is not a matter which the agreement prescribes. The other factors relied upon under the second ground, so far as we can tell, are not of such significance that the Commissioner's failure to deal with them expressly raises a sufficiently arguable case of error.

PN318

Turn to the second ground, failure to apply the proper legal test as to relocation. This relates to the Commissioner's finding that there was an implied term of the contract of employment between Mr Liu and the company that there could be no relocation of the work. That finding is in paragraph 51 of the decision. The finding appears to have been made at least partially in response to a submission by the company that there was an implied term of the contract that there could be a reasonable relocation insisted upon by the employer. That submission was rejected. Regardless of that rejection the Commissioner's decision was ultimately based on a finding that Mr Liu's refusal to move to Laverton was legally permissible and was reasonable. For this reason the existence of an implied term of relocation, even if it were found, would not be likely to have led to a different result.

PN319

Turning to the third ground, that concerned with Mr Micallef's evidence, in our view there is nothing to suggest that Mr Micallef's evidence should have been given more weight than it was. That evidence illustrates that for whatever reason Mr Liu always opposed changing his work location to Laverton and sought a redundancy package. While it was submitted that the Commissioner should have found that the family responsibility issues relied upon by Mr Liu in the hearing were fictional or merely a smokescreen to obtain a redundancy payment, we think it was open to the Commissioner to find, as he did, that Mr Liu's concerns about this family responsibilities for the most part were genuine and to take that into account in reaching a decision that it would be unreasonable to require Mr Liu to relocate his employment from Richmond to Laverton, and we refer to paragraphs 56 and 57 of the decision.

PN320

In summary there is not a sufficiently arguable case that the Commissioner fell into error or that injustice would result if leave is not granted to appeal, nor are there any other reasons in the public interest or otherwise why leave should be granted. The application for leave to appeal is declined.

PN321

Thank you gentlemen for your submissions, we're now adjourned.

<ADJOURNED INDEFINITELY [12.58PM]