C2005/1307, Transcript of Proceedings [2005] AIRCTrans 790 (31 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10981-1

SENIOR DEPUTY PRESIDENT HARRISON
SENIOR DEPUTY PRESIDENT HAMBERGER
COMMISSIONER SMITH

C2005/1307

APPEAL BY CAELLI CONSTRUCTIONS (VIC) PTY LTD
s.45 Appeal to Full Bench
(C2005/1307)

MELBOURNE

10.03AM, TUESDAY, 22 MARCH 2005

PN1

MR B SHAW: I seek leave to appear for the appellant.

PN2

MR J MADDISON: I appear on behalf of the respondent. I don't oppose leave for my learned friend in this case.

PN3

SENIOR DEPUTY PRESIDENT HARRISON: Yes. Thanks. Leave is granted, Mr Shaw. Mr Shaw?

PN4

MR SHAW: Commissioner, I did file what the Commission asked for is an outline of submissions but on reflection, there is very little really to add, perhaps to make some submissions in respect of the similar outline of Mr Maddison on behalf of the respondent.

PN5

SENIOR DEPUTY PRESIDENT HARRISON: Yes. We might indicate that that was a matter that we were just about to address ourselves. You may both assume that we have read the outlines of submissions lodged in accordance with the directions that we have made and also the documents at first instance.

PN6

MR SHAW: Thank you, your Honour. The appellant's case, I might say, having read the submissions of Mr Maddison, in fact, boils down really not to the first two grounds of appeal that is the Commissioner was in error in making the finding he made in respect of the termination being unreasonable. And I can see without submitting any further, that it was open for the Commissioner on the facts as put before him and particularly the evidence of Mr Caelli which I have, in fact, summarised at paragraph 6, or pointed to at paragraph 6 of the outline of submissions that Mr Caelli failed to consult and he didn't believe it was either necessary or possible, he stated. But nevertheless, on the material as put before the Commission it was certainly open to the Commissioner to make that finding.

PN7

The real issue in this matter from the appellant's point of view is the problem of the compensation, and in looking at that and looking at Mr Maddison's submissions, we don't obviously attempt to deviate or ask the bench to in any way deviate from principles from House v The King or repeat those that are set out on page 2 of Mr Maddison's submissions from Norgis v Norgis. What the appellant says is that Commissioner Tolley did, in fact, make his assessment of the point based on a wrong principle. And the principle that we point to is the one that is set out in the outline of submissions in Nicholson v Heaven and Earth Gallery Proprietary Limited. I have got copies from the - of course, not the Industrial Court copies, I have got copies from the AustLII report.

PN8

SENIOR DEPUTY PRESIDENT HARRISON: Yes. Thank you.

PN9

MR SHAW: I am sure the Commission is probably familiar with that decision but in that decision, the then Chief Justice of the Industrial Relations Court, in making a finding then went on to make a number of observations about the proper process in termination even though they weren't part of the ratio of that case. Then to page 15 or 16 on that report, at the top of that page there, explaining from earlier passages in other decisions, he then goes on to say that, in a sense, in conversation for a breach of what was then section 170DC of the Act. It's appropriate to consider what would have been likely to occur had that breach not occurred. In other words if there is a failure in procedural fairness, it's up to the tribunal to look at what would have occurred had the failure not taken place. And in this instance, the appellant says that clearly, in the nature of the industry and the evidence that was given and not in any way disputed at the lower hearing, that the company was carrying the labour, the company was tendering for the jobs, the company failed to win those jobs and had to make a decision to terminate employees quickly.

PN10

It made a decision to terminate what it regarded as a particular class of employees, and that is yard labourers, and did so. Now, in my submission, were consultation to have occurred as is suggested by the appropriate provisions of the certified agreement, such consultation would have been extremely brief. It wouldn't have been 12 weeks, it couldn't have been 12 weeks. That's the simple nature of the building industry of which Commissioner Tolley, having been a Commissioner in that industry for many, many years, is fully aware just doesn't allow that sort of consultation process. The Commission found at first instance, the
termination - - -

PN11

COMMISSIONER SMITH: Is that the point of consultation?

PN12

MR SHAW: Sorry?

PN13

COMMISSIONER SMITH: Is that the point of the consultation, to go through a period of consultation and the answer would have been the same?

PN14

MR SHAW: Well, looking at Mr Maddison's authorities, I can fully see that consultation has got to be a real issue.

PN15

COMMISSIONER SMITH: Yes. It's something I noticed.

PN16

MR SHAW: I wasn't going to dispute previous decisions of his I wasn't going to dispute previous decisions of this Commission or other of the tribunals or other courts but obviously, in our submission, the result would have been the same in any event, and there would have simply been a period of perhaps, I would have suggested, a week. Well, it could well have been, based on Mr Caelli's evidence, he doesn't actually say how long but he seems to be very quick, it seemed to be a matter of days really that they wanted to make the decision that he had to terminate and made the decision as to who he would terminate. So it really comes down to a very, very brief period of time.

PN17

SENIOR DEPUTY PRESIDENT HAMBERGER: But isn't it possible, Mr Shaw, that the result of the consultation could have been to decide to look across the whole business for deciding who should be made redundant, in that all wages should have been considered rather than just the labourers in the yard. If that had been put to Mr Caelli maybe he might have, we don't know because it's a bit hypothetical, he might have said, oh, well, okay that's a good point and I will look at outside the yard and it's possible the applicant wouldn't have been terminated at all. I mean, isn't that at least possible?

PN18

MR SHAW: Well, I can't say it's not possible, that would be misleading. I do realise that some responsibilities as a barrister to say what is the truth. I mean, obviously, it's not impossible but certainly evidence was that those particular group of labourers were the ones that were redundant in the sense their jobs were redundant and not needed. Whether it could have resulted in, as is indeed put at some length by Mr Wainwright in the transcript to Mr Caelli whether it could have resulted in perhaps Mr Bozena being kept on and somebody else somewhere else being terminated is really a matter of conjecture.

PN19

COMMISSIONER SMITH: That was because of the employer's definition of what yard labourers were.

PN20

MR SHAW: Well, it's from the transcript, you will read Mr Caelli sees yard labourers as workers in the yard and based at the yard and there was indeed some evidence that Mr Bozena worked on some factories but they were effectively on an adjoining property and he was always based in the yard. And that was the employer's clear understanding that they didn't need those people because they didn't have the sort of work that those people did. Now, I mean it's clearly Commissioner Tolley's finding that there were less jobs than people, that there was a valid reason for the termination and it simply fell down on the issue of proceeding in fairness. And this morning, despite the notice of appeal, I am conceding that issue but I am suggesting that had procedural fairness taken place that the result would nevertheless have been the same.

PN21

It's very clear that is Mr Caelli's view, it's certainly not the Commissioner's role to take over the role of the manager of companies, the Commissioner's role is to assess wether what took place was harsh, unjust or unreasonable and in my submission the termination would have still taken place but the consultation period would have been quite brief and would have resulted eventually with the same issue. It would have been simply the old understanding of Industrial Relations Court was consultation to be able to provide a soft landing, well it would have been a slightly softer landing than actually occurred but not upside. Now, there is an issue in the submissions of the respondent, in particular in paragraph 6 where it is suggested that the appellant in this instance is trying to have a second bite of the cherry by raising the issue of daily hire. Now, I say two things about that, firstly with a Commission that is constituted by Commissioner Tolley would have been fully aware of the hire arrangements in the construction industry in any event. It is a matter of an award, it's not really a case of leading evidence in this Commission about its own awards, I would have thought.

PN22

But more importantly, that's not really the issue in any event, whether it was daily hire or weekly hire or simply for the weekly hire then they would have had a weeks notice, a weeks pay, notice would have had to be given but it doesn't really alter the fact that the consultation period would have been a very brief one in any event. When subject to any questions from the bench and in respect of the submissions, I have really got nothing further to put.

PN23

SENIOR DEPUTY PRESIDENT HARRISON: We might just take a short break now before we consider how the matter will now proceed. I wonder if counsel will stay within the vicinity of the courtroom. Commission now adjourns.

<SHORT ADJOURNMENT [10.15AM]
<RESUMED [10.18AM]

PN24

SENIOR DEPUTY PRESIDENT HARRISON: We do not need to hear from you, Mr Maddison. We have had the opportunity in this matter prior to the hearing this morning to have read the submissions and they were quite comprehensive, lodged by both the appellant and the respondent and to have regard to the matters below. Although the grounds of appeal challenged error or identified what was said to be errors both in relation to the finding of unreasonableness and the remedy, we note the concession made this morning by Mr Shaw which we believe was one properly made, that the finding that the termination of employment was unreasonable was one open to the Commissioner. The challenge proceeded in relation to the award of an amount in lieu of reinstatement, that award of 12 weeks pay was said to be excessive.

PN25

We have taken into account all that is said about that in the written submissions and the challenge made by Mr Shaw to the error that is said to be reflected in the approach taken by the Commissioner in striking that amount. The appeal is against an exercise of a discretion by the Commissioner. We have considered all that has been put but are not persuaded that the Commissioner's remedy was in error. In these circumstances, we are of the view that the matters raised in the grounds of appeal do not warrant in the public interest or otherwise, leave being granted. The appeal is dismissed. The Commission now adjourns.

<ADJOURNED INDEFINITELY [10.20AM]