C2008/2329, Transcript of Proceedings [2008] AIRCTrans 212 (15 May 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18457-1

SENIOR DEPUTY PRESIDENT DRAKE

C2008/2329

Appl’n to vary or set aside obligation to pay redundancy pay under PSA
Nuplex Industries Australia Pty Ltd
and
Mr Wolfgang Brinskele
(C2008/2329)

SYDNEY

10.08AM, FRIDAY, 02 MAY 2008

Continued from 1/5/2008

Reserved for Decision

PN1043

THE SENIOR DEPUTY PRESIDENT: Mr Chin?

PN1044

MR CHIN: Thank you, your Honour. Your Honour may I hand to you, for the purpose of my submissions, two items? Firstly, a folder of authorities to which we've referred in the list of authorities for your Honour's convenience.

PN1045

THE SENIOR DEPUTY PRESIDENT: Yes, sure.

PN1046

MR CHIN: If your Honour doesn't already have them, and also a written outline of submission which I prepared and to which I intend to speak in relation to the submissions.

PN1047

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Chin.

PN1048

MR CHIN: Yes, your Honour, my submissions will address six topics as follows. Firstly, I intend to address the basis for the application and in particular the operation of the exemption provision in the preserved collective State agreement. Secondly, I wish to address the dispute between the parties as to the fact of the offer of employment having been made to Mr Brinskele, and to address some of the evidence in relation to that. Thirdly, your Honour, I propose to go to some of the general principles that guide the Commission's discretion in making the order that we seek; and in particular as I touched on in my opening, the termination change in redundancy case and the cases of Re Derole v Q Automotive.

PN1049

Fourthly, I will then address your Honour on the proposition that the applicant relevantly obtained the acceptable alternative employment, both by reference to the evidence and the relevant principles. Fifthly, I will go to the evidence, your Honour, as to the proposition that the alternative employment obtained for Mr Brinskele was acceptable; by reference to a number of factors, six in all, including remuneration, accrued credits, the nature of the work, his seniority, job security and the location of the work. Sixthly and lastly I wish to address your Honour on the evidence relating to the failure of Mr Brinskele to cooperate in accepting the alternative offer of employment.

PN1050

The first part of the written submissions, your Honour, goes to the basis for the application. The particular issue which I wish to highlight and address your Honour on is identified at paragraph 10, and that is the operation of the exemption provision in the preserved collective State agreement. In order to do so may I trouble your Honour to refer to the agreement, that's exhibit Nuplex 1. It's a provision to which I took your Honour at the outset of the case and it's clause 5 which provides that the relevant award, Nuplex 2, is to be read and I quote, "wholly in conjunction" - or the agreement, I should say, is to be read wholly in conjunction with that award. Further, it states that the terms of the award are incorporated into the terms of the agreement. So that's the starting point for the analysis as to the operation of the exemption provision.

PN1051

Contrary to a suggestion made by my learned friend, the applicant does not seek to ask this Commission to vary the agreement in any way. By clause 5 of the agreement, in my submission, the exemption clause was part of the agreement by the operation of the terms of the agreement itself. That is evident, in my respectful submission, in clause 5.

PN1052

It's clear, your Honour, that the parties to the agreement did not intend for the agreement to be read in isolation. That's clear from the terms of clause 5 and in my submission the fundamental principle of award interpretation applies in this context, your Honour. That is that consistent with the general principle, the Commission ought to avoid a too literal adherence to the construction of an industrial instrument, to view the matter broadly and critically, your Honour, to endeavour to give consideration and weight to every part of the instrument. That principle is an established principle in industrial law and if authority be needed for it, can I refer your Honour not to my list but to the authority of Geo, G-e-o A Bond v McKenzie at (1929) AR NSW 498 at 503 to 504, a well established principle your Honour.

PN1053

So that if your Honour then turns to the exhibit Nuplex 2, the award, and in particular to the relevant exemption provision, clause 25.5(iii), and that's on page 20 of the award at the top. Consistent with the general principle of award construction, your Honour would endeavour to give weight to every part of the agreement including this clause. In my submission this clause can be read and is consistent with appendix C of the agreement, which sets out the redundancy entitlements under the agreement. It is consistent in two ways. If your Honour looks at the terms of the exemption provision, it provides that:

PN1054

Subject to an application by the employer and further order of the Commission an employer may pay a lesser amount (or no amount) of severance pay than that contained in paragraph (i) of this subclause if the employer obtains acceptable alternative employment.

PN1055

Firstly, if an order can be made for an employer to pay a lesser amount than 20 weeks in subclause (i), then it follows that an order can be made for an employer to pay a lesser amount than 64 weeks, or any other amount beyond 20 weeks. Secondly, the exemption provision provides that an order can be made to pay no amount, without reference to subclause 25 in the award which establishes a minimum rate of 20 weeks for a relevant employee after 6 years.

PN1056

In my submission this provision can be given effect to as part of the agreement, as an order can be made for no amount of redundancy pay by reference to whatever maximum that is contained in the agreement. Now if the respondent is correct then the exemption clause would never have any work to do and that would be contrary to the principles governing the interpretation of the agreement and the express provisions of clause 5 of the agreement, which incorporate that provision as part of the term of the agreement.

PN1057

It would never have any work to do because whatever the order of the Commission under this clause, on the respondent's case the redundancy provisions in appendix C would be effectively quarantined from that order. For those reasons, in my submission, the Commission would strive to give effect to every part of the agreement. The exemption provision expressly is part of the agreement, and is consistent with the way that I've submitted with the operation of the redundancy provisions in the agreement.

PN1058

Your Honour, if I can turn now to the issue of the fact of the offer having been made. In my submission your Honour can be satisfied on the evidence that Mr Lipman, on 4 December 2006, made an offer of alternative employment with Lomb to the respondent. Your Honour has the evidence of Mr Lipman and the evidence of Mr Lipman, in my submission, where it is contested by Mr Brinskele, is to be preferred. Mr Lipman, in my submission, was an objective and reliable witness and a witness who on his own account is still willing to employ Mr Brinskele in the position at the lab at the Riverstone site; and that's to be found in his affidavit, Nuplex 6, at paragraph 54.

PN1059

His evidence is to be preferred for the following reasons. Mr Lipman was sure of his recollection that copies of the letter of offer of employment were given to Mr Brinskele at the meeting on 4 December, and that the terms of that letter were discussed with Mr Brinskele in detail. As became evident in the course of Mr Lipman's cross-examination, your Honour, he only gave out one letter of offer of employment that day and that was to Mr Brinskele. Mr Lipman completely rejected the proposition that he was reconstructing events. Rather, your Honour, he had a clear recollection, a firsthand recollection of having done so.

PN1060

Also, your Honour, the fact that Mr Lipman made an offer and that Mr Brinskele initially accepted it is strengthened by the evidence of Mr Lipman in conjunction with Ms Hardie. Mr Lipman says that within a few minutes of having done so, he went to tell Ms Hardie that he had made an offer to Mr Brinskele. Ms Hardie corroborates that at exhibit Nuplex 11 at paragraph 14. The relevant paragraph, without troubling your Honour, in relation to Mr Lipman's evidence is at Nuplex 6 paragraph 40; a contemporaneous statement by Mr Lipman to Ms Hardie that he had made an offer.

PN1061

In contrast, your Honour, there is the evidence of Mr Brinskele himself. In my submission on this point it is unreliable. When it was put to Mr Brinskele in cross-examination that Mr Lipman's statement, to the effect that he told Mr Brinskele on 4 December that his existing salary at Nuplex would be the same and all his accrued entitlements were transferred along, when that was put to him - and it was put to him that it was made in connection with an offer of employment made by Mr Lipman - the respondent's reply was that, and I quote according to my notes, "I may not even have been listening". I will go on in due course, your Honour, to address the nature of that offer in more detail.

PN1062

Before I do so can I turn to my third topic, and that is to address your Honour on the general principles applicable that will guide your Honour's discretion in making the order that the applicant seeks in these proceedings. Those principles are set out in paragraphs 18 to 24 of my written submissions but can I just highlight a few aspects of those submissions.

PN1063

The first proposition is that the principles applicable to redundancy provisions well established by this Commission include the principle that the Commission did not intend redundancy payments to be made in cases of transmission of business. Can I take your Honour to the first TCR case [1984] CthArbRp 284; (1984) 8 IR 34. Should your Honour wish to refer to the bundle of authorities - - -

PN1064

THE SENIOR DEPUTY PRESIDENT: Yes, I have them in your bundle.

PN1065

MR CHIN: Yes, I think it's behind tab 3. At paragraph 75, the last full paragraph on that page, the Commission stated that it did not wish to prevent an employer from making an application to be exempted from the general prescription:

PN1066

Pursuant to this decision in cases where an employer obtains acceptable alternative employment for an employee. But we would point out that in our decision severance payments are not made for the purpose of assisting employees to find alternative employment.

PN1067

Then relevantly the Commission goes on to state:

PN1068

Where such an application was made it would be important to consider whether previous service with the previous employer was recognised as service with the new employer.

PN1069

That's the case in this case, your Honour, pausing there. Critically, the Commission goes on to say:

PN1070

However we would make it clear that we do not envisage severance payments being made in cases of succession, assignment or transmission of business.

PN1071

THE SENIOR DEPUTY PRESIDENT: Do you say the employer was recognising previous service?

PN1072

MR CHIN: Yes, your Honour.

PN1073

THE SENIOR DEPUTY PRESIDENT: Do you say that at commencement Lomb was considering that he had 34 years under entitlement to redundancy benefits? 30 years, what was it?

PN1074

MR REITANO: 33.

PN1075

THE SENIOR DEPUTY PRESIDENT: 33. I didn't get that impression from Mr Lipman's evidence. I thought he was starting from scratch in terms of redundancy.

PN1076

MR CHIN: Your Honour - - -

PN1077

THE SENIOR DEPUTY PRESIDENT: Services for the purposes of redundancy. Even if he was calculating it under the statutory rate, that the calculation commenced at nil years of service from commencement of employment.

PN1078

MR CHIN: No, your Honour. Can I ask your Honour to have regard to the letter of offer at annexure AL2 to Mr Lipman's statement?

PN1079

THE SENIOR DEPUTY PRESIDENT: Sure.

PN1080

MR CHIN: That letter makes it clear - and it's the third paragraph on the first page of the letter - it states that, "Your employment with Lomb will commence on 1 January 2007". Does your Honour have that?

PN1081

THE SENIOR DEPUTY PRESIDENT: Yes, I do.

PN1082

MR CHIN: Then it goes on to say:

PN1083

However your prior service with Nuplex will be recognised as a period of continuous service with Lomb for the purpose of calculating your entitlements.

PN1084

Without any qualification. There may have been - - -

PN1085

THE SENIOR DEPUTY PRESIDENT: I read that and I will reread Mr Lipman's evidence of course, but I got the impression from his evidence that he had not considered the entitlement to redundancy pay, and that it not being one of the matters that he specifically dealt with, or Ms Hardie, that he was giving consideration to that entitlement as being one that the period commenced with Lomb. But that was at the end of the day yesterday, when I thought about what he had been saying, but that was generally the impression I got, despite what was in the letter. That the matters that he had given specific consideration to were those matters set out in Ms Hardie's schedule, which was long service leave and sick leave and annual leave.

PN1086

MR CHIN: Can I address your Honour in this way. The accrued entitlements to sick leave, annual leave and long service leave in Ms Hardie's schedule, which Mr Lipman had a copy of, were all based on accrued entitlements based on his length of service from the very commencement. There is no question that Mr Lipman told Mr Brinskele, as set out in this letter, that all those accrued entitlements would carry over, based on the full length of service.

PN1087

THE SENIOR DEPUTY PRESIDENT: But when Mr Reitano - I think it was Mr Reitano - asked him questions about how he gave consideration to Mr Brinskele's redundancy, how he would have viewed that; he said he wouldn't have viewed it as an entitlement that moved over. I think his answer to, "What if the job became redundant after a period" would he have thought he was obliged to pay whatever the entitlement was with Nuplex, at the rate at which he had accrued in accordance with his entitlements at Nuplex and he said, "No".

PN1088

MR CHIN: There are two different propositions there, your Honour. Whether or not Mr Brinskele was conscious of the entitlement to the extent - - -

PN1089

THE SENIOR DEPUTY PRESIDENT: Mr Lipman.

PN1090

MR CHIN: Mr Lipman was conscious of the entitlement, that is at the rate of three or four weeks a year of service, that he would pay. But secondly whether or not the prior service of Mr Lipman with Nuplex and its predecessors would be recognised for any relevant redundancy entitlement at any other rate or standard at Lomb. Now Mr Lipman's answer or evidence in relation to what standard Lomb would apply was whatever the statutory requirements were.

PN1091

THE SENIOR DEPUTY PRESIDENT: I got the impression that he meant whatever the statutory requirements were after the period of service with Lomb.

PN1092

MR CHIN: I think your Honour, in my submission, that's not the - - -

PN1093

THE SENIOR DEPUTY PRESIDENT: I haven't got the transcript in front of me.

PN1094

MR CHIN: Yes.

PN1095

THE SENIOR DEPUTY PRESIDENT: Neither do you so we can't resolve this at the moment, but that's what my recollection is so I'm raising it with you.

PN1096

MR CHIN: Yes, your Honour. My submission is that that's not the effect of Mr Lipman's evidence. If one looks at it closely the effect of Mr Lipman's evidence is that prior service with Nuplex and its predecessors, like with accrued long service, annual leave and sick leave, would be recognised and in respect
of - - -

PN1097

THE SENIOR DEPUTY PRESIDENT: He did distinguish the method in which the sickness entitlements were accrued. Sickness entitlements were accrued in a way at Nuplex that is unusual.

PN1098

MR CHIN: Yes.

PN1099

THE SENIOR DEPUTY PRESIDENT: Generous. They accrued a vast number of days. They could accumulate them and take them.

PN1100

MR CHIN: Yes.

PN1101

THE SENIOR DEPUTY PRESIDENT: That's a matter that he accepted.

PN1102

MR CHIN: Yes.

PN1103

THE SENIOR DEPUTY PRESIDENT: But he did not accept that redundancy entitlements which were set at a rate under the Nuplex agreement, in the same way that sick leave was set at a rate under the Nuplex agreement, should be paid out in the same way as they had been accrued, on the terms on which they had been accrued. He distinguished that.

PN1104

MR CHIN: Well, the relevant distinction there, your Honour, is firstly the proposition as to whether prior service would be recognised generally.

PN1105

THE SENIOR DEPUTY PRESIDENT: Well, we can't resolve that. You say it's one thing and I will look at the transcript.

PN1106

MR CHIN: But in relation to accrued redundancy entitlements, the effect of Mr Lipman's evidence was that Lomb didn't have the same redundancy standard as Nuplex, but that his understanding was that whatever the statutory obligations of Lomb were, they would abide by them.

PN1107

THE SENIOR DEPUTY PRESIDENT: But he didn’t say, in relation to the accrual from the date of commencement with Lomb, they would be accrued in terms of the Lomb policy at a statutory rate and before that it would be at the Nuplex rate. He didn't seem to apply his mind to whatever might have been the Nuplex policy for accrual of redundancy entitlements, as if it was irrelevant; not in his thought process, in some way.

PN1108

MR CHIN: Well, in my submission your Honour, the terms of the letter are clear. Prior to continuous service generally will be recognised.

PN1109

THE SENIOR DEPUTY PRESIDENT: But it doesn't mention redundancy.

PN1110

MR CHIN: But it's a general statement, your Honour.

PN1111

THE SENIOR DEPUTY PRESIDENT: Wait a second.

PN1112

MR CHIN: It doesn't mention redundancy specifically, that's correct your Honour, but it's a general statement; one that's not uncommon with offers of employment of this kind. That is, that your service will be treated as continuous.

PN1113

THE SENIOR DEPUTY PRESIDENT: One moment. Didn’t he in his affidavit specify what entitlements the continuous service would be recognised for, but not mention redundancy? Or have I just invented that?

PN1114

MR CHIN: If your Honour will give me a moment.

PN1115

THE SENIOR DEPUTY PRESIDENT: Could I have Mr Lipman's - I've got it here, it's all right.

PN1116

MR REITANO: Page 10, paragraph 37 ..... six in respect of annual leave, sick leave and long service leave. About halfway down the page, your Honour.

PN1117

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN1118

MR CHIN: I think the evidence - - -

PN1119

THE SENIOR DEPUTY PRESIDENT: I just haven't found it yet, Mr Chin.

PN1120

MR CHIN: Sorry your Honour.

PN1121

THE SENIOR DEPUTY PRESIDENT: You see yes, I think he was cross-examined about that. I don't think he included it in those matters which he raised with Mr Brinskele, and generally when asked whether he had any knowledge of what redundancy was and how it was accrued, what the entitlements were at Nuplex, he seemed to know nothing about them.

PN1122

MR CHIN: Your Honour is correct in the evaluation of that aspect of the evidence. Mr Lipman didn't specifically turn his mind to the redundancy entitlements but the effect of the offer, in my submission, is that the obligation upon Lomb would have been to recognise Mr Brinskele's prior service of the purpose of all entitlements.

PN1123

THE SENIOR DEPUTY PRESIDENT: I think it's very unfortunate that we are here hearing submissions without having asked Mr Lipman that question specifically. If he had offered Mr Brinskele a job, Mr Brinskele had accepted it and two days later he decided he was redundant, no matter on what rate he thought he would pay his entitlement, would he have calculated his entitlement on 33 years' service or a week's?

PN1124

MR CHIN: Your Honour, in my submission, the inference from the evidence is clear. It's baldly stated in the letter of offer that all entitlements without qualification would be based on continuous service. Your Honour could be satisfied - - -

PN1125

THE SENIOR DEPUTY PRESIDENT: So you say that Mr Lipman would have paid it at 33 years and a week or whatever it is?

PN1126

MR CHIN: His evidence is he would have paid annual leave with that prior service; he would have paid long service leave with that prior service; he would have paid sick leave with that prior service. The letter of offer makes that clear. His statement to Mr Brinskele makes that clear.

PN1127

THE SENIOR DEPUTY PRESIDENT: His statement to Mr Brinskele makes it clear in relation to annual leave, sick leave and long service leave.

PN1128

MR CHIN: Yes.

PN1129

THE SENIOR DEPUTY PRESIDENT: I don't think it makes it clear in relation to redundancy pay and I would have thought that that would be a very persuasive matter, if he wanted to persuade Mr Brinskele to move. That's all. Anyway, you say that that's the inference?

PN1130

MR CHIN: Yes, your Honour.

PN1131

THE SENIOR DEPUTY PRESIDENT: I don't recall if there was any direct question on that particular issue before me, but I knew there was some reason why I thought it had been left out and it is probably that paragraph in the affidavit.

PN1132

MR CHIN: Yes, your Honour.

PN1133

THE SENIOR DEPUTY PRESIDENT: All right, go on.

PN1134

MR CHIN: Thank you, your Honour. If I can submit one last thing in relation to that issue. Your Honour would have regard to the redundancy entitlement issue as an element of a global picture as to whether or not the alternative employment was acceptable. I will submit in due course, your Honour, that one can't look at that entitlement, the redundancy entitlement which is a contingent entitlement, in isolation in circumstances where - - -

PN1135

THE SENIOR DEPUTY PRESIDENT: No, I accept it's not a matter you look at in isolation. It's one of a number of factors.

PN1136

MR CHIN: Yes, your Honour, and also having regard to the evidence about the ongoing security of the position at the Lomb laboratory.

PN1137

THE SENIOR DEPUTY PRESIDENT: Yes, do you think that that's a matter that I should assess objectively, as it was apparent at the date the offer was made? I think that's the relevant time to consider its objective security. I mean at that time. We now know that the lab is built, but at the time that the offer was made to Mr Brinskele no one knew that - it was proposed to be built but you could not say it was certain that it would be; it was subject to at least two development applications. You know, Councils say yes, Councils say no. Residents object. I don't know what the outcome of those matters might be and it may very well be, objectively, that they are not matters that much would be known about at the time.

PN1138

MR CHIN: As it happens, your Honour, the laboratory was not constructed in relation to or pursuant to a development application. It was constructed by other means and - - -

PN1139

THE SENIOR DEPUTY PRESIDENT: Really?

PN1140

MR CHIN: Yes. The evidence is that Mr Lipman abandoned the development application process and elected to construct a demountable lab on the site, for various reasons.

PN1141

THE SENIOR DEPUTY PRESIDENT: I don't remember that you didn't have to have a development application to have a demountable, not that I know.

PN1142

MR CHIN: I think the relevant paragraph in Mr Lipman's statement is in 48. Mr Lipman gave a commitment to build the lab and the evidence of Mr Lipman, your Honour, was that the construction of the lab was an integral part of the purpose of purchasing, requiring the Ajax Finechem business. It was an integral part of Lomb strategy in doing so because his evidence, uncontested, is that the Nuplex laboratory in which Mr Brinskele was employed was a critical feature of the business. In Mr Lipman's words, it set Ajax Finechem apart from all its competitors. That's the whole reason why the transaction took place in the first place.

PN1143

THE SENIOR DEPUTY PRESIDENT: Do you say that you can just build a demountable somewhere without a development application?

PN1144

MR CHIN: Well it appears on the evidence that that's what occurred.

PN1145

THE SENIOR DEPUTY PRESIDENT: I'm not sure that's the case. I'm not a Planning and Environment Court person but I would be surprised if you could avoid a development application by building all your buildings as demountables.

PN1146

MR CHIN: The fact remains, your Honour, it's there and it's there permanently on the evidence of Mr Lipman.

PN1147

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1148

MR CHIN: Mr Lipman's second affidavit, Nuplex 7, outlines in some greater detail the substantial nature of the laboratory that has been constructed, in paragraph 8 of that affidavit.

PN1149

THE SENIOR DEPUTY PRESIDENT: It's a substantial demountable.

PN1150

MR CHIN: It is.

PN1151

THE SENIOR DEPUTY PRESIDENT: All right.

PN1152

MR CHIN: One that Lomb had expended significant resources in developing.

PN1153

THE SENIOR DEPUTY PRESIDENT: Right.

PN1154

MR CHIN: If I can return to the issue of the general principles applicable at your Honour's discretion.

PN1155

THE SENIOR DEPUTY PRESIDENT: Sure.

PN1156

MR CHIN: In addition to the TCR case, the case I referred to in paragraph 24 of the written submissions, Steps v ALHMWU, where again it stated that:

PN1157

In normal circumstances if the Commission is satisfied the credits based on length of service have been transferred to the acquirer of the business it would be inappropriate to require that employees who transfer their employment from the vendor to the purchaser should also receive severance payments.

PN1158

In my submission that's a well entrenched principle and it's the starting point from which to determine applications of this nature. In support of that proposition, the principles inform and guide the Commission's approach to determining applications of this kind. May I ask your Honour to turn to Q Automotives? That's behind tab 2.

PN1159

THE SENIOR DEPUTY PRESIDENT: Two.

PN1160

MR CHIN: Yes, your Honour. Beginning at paragraph 36 of that decision your Honour will see that the Commission, Richards SDP in this case, from paragraph 36 through to 41, traversed the relevant authority, including the TCR case, applicable to redundancy provisions. At paragraph 41 his Honour notes that in respect of non-transferable credits the 2004 Full Bench, that is the review of the TCR case decision -

PN1161

while indicating the issue was significant highlighted nonetheless the contingent nature of such credits.

PN1162

Then at paragraph 48 his Honour notes that the authorities which his Honour has traversed, including the propositions about when severance payments should be payable or should not be payable in circumstances of transmission of business, his Honour goes on to say:

PN1163

The authorities provide guidance that the Commission is vested with a discretion to grant on such terms as it might seem just any relief for an employer from its obligation to otherwise pay redundancy pay.

PN1164

In other words those principles applicable to redundancy provisions at a fundamental level inform the Commission's discretion on an application like this one.

PN1165

Another principle to which I wish to refer your Honour is that a failure by an employee to cooperate with the employer may well disentitle the employee to some or all of the redundancy payment. The relevant authority for that proposition is to be found in Re Derole Nominees. That authority establishes that that sort of non-cooperation arises where an employee rejects an offer of alternative employment based on subjective reasons, with no regard paid to the reasonable expectation that the employee would seek to minimise the hardship that arises from any prospective redundancy.

PN1166

Can I take your Honour briefly to Re Derole Nominees and that's behind tab 7 of the bundle of authorities. On the second page of that decision, your Honour, the second full paragraph - it's unfortunately difficult to discern the numbering and it's not paragraphed so if your Honour will bear with me - - -

PN1167

THE SENIOR DEPUTY PRESIDENT: Decisions weren't paragraphed until the 90s, I don't think.

PN1168

MR CHIN: Yes, your Honour. The Commission there notes that in that case, about halfway down the page, it outlines the steps the company took to obtain alternative employment. It's said that prior to the termination the company had made efforts designed to cause other employment to be available to its employees. Arrangements were made with employers, approximately six employers including some companies, to put the departing employees in contact with these groups as prospective employers.

PN1169

The evidence before the Commissioner was the subject of some dispute but the Commission notes that arrangements were made for the company's employees to visit the prospective work sites with the intention of permitting an inspection of the factory and an interview with representatives of the establishment. Similarly, representatives of those prospective employers attended the employees', or the company's premises, for the purposes of viewing employees at work. So that was a factual basis to that decision in terms of what the employer did to enable the alternative employment to have arisen or to have been crystallised.

PN1170

Re Derole is also useful, your Honour, for the general principles regarding the determination of acceptable alternative employment. On pages 6 and 7, and I'm referring to the top right-hand corner of the paginated decision in the bundle of authorities, the Commission states that:

PN1171

What constitutes acceptable alternative employment is a matter to be determined on an objective basis. Alternative employment accepted by the employee cannot be an appropriate application of the words because that meaning would give an employee and unreasonable and uncontrollable opportunity to reject the new employment in order to receive redundancy pay.

PN1172

Over the page, relevantly in relation to the facts in this case, the Commission stated that the reasons given by the employees there, including being too old; preferring to seek employment in the immediate vicinity of the company's premises, which were very near to the employee's home; and preferring to seek work on heavy fabrics rather than light; preferring a time worked system to bonus et cetera, "Cannot displace the objective test". The Commission said:

PN1173

Given the size of our cities and the common need to travel some distance to work, the fact that redundancy pay has been designed in part to tide an employee over after the loss of employment pending the attainment of another job and the fact that to reject available alternative employment which is objectively acceptable, by an election based on personal preference is to place the right to receive full redundancy pay at risk.

PN1174

Your Honour would distinguish between some of the subjective reasons given by Mr Brinskele in this case on that basis, and to apply that standard in relation to an assessment in objective terms of the acceptability of the alternative employment.

PN1175

May I turn now, your Honour, to the fourth matter upon which I wish to address and that is the way in which the respondent relatively obtained the alternative employment. In Re Derole Nominees, and I won't trouble your Honour by turning to it again, that authority stipulates that the requirement to obtain alternative employment is not an absolute test. It does not mean actually obtain in the fullest sense. Rather it requires or refers to some effort or action which causes acceptable alternative employment to become available to the employee.

PN1176

It refers to efforts made to bring the employee and the prospective employer together. In other words, where the employer was a strong moving force towards a creation of the available opportunity. So your Honour will see from that authority - and I'm referring to pages 4 and 6 of that authority - the question arises what does strong moving force mean? Guidance is given by the Full Bench in that case, your Honour:

PN1177

It means the purpose and effort to establish an opportunity which suits an employee and which crystallises as acceptable alternative employment.

PN1178

In Re Derole, as I've taken your Honour to, efforts were made by the employer to put prospective employers in contact with his employees by way of site visits, including visits by the prospective employer to the employees' worksite in order to view the performance of their work. Further guidance as a matter of fact, your Honour, is discernible from past authorities which have considered what constitutes sufficient action to constitute obtaining alternative employment.

PN1179

Your Honour will see in the cases of Steps v ALHMWU and also in Re Clerical and Salaried Staffs Agribusiness Award, which is also in the authorities folder, the action that was held to have been sufficient was the action of an employer in transmitting its business to an acquirer or a successor who was willing to make those offers and nothing more.

PN1180

In Re Derole Nominees, as I've submitted, it was action to make arrangements to bring the parties together, including to have the prospective employers come to the worksite to observe the employees working. In Q Automotive Group and in Clothing and Allied Trade Union of Australia v Hot Tuna, another authority in the bundle, the action was an approach by an employer to a new owner of an outsource business in order to encourage it to employee its employees. In Re Integrity Employment Services Pty Ltd the relevant action was simply to make recommendations to a prospective employer that it should employ its employees.

PN1181

So that the requirement for an employer to have obtained the employment, in my submission, is satisfied in this case. The Lomb offer was made in the course of the sale of the business from the applicant to Lomb. In accordance with the authorities, including Steps, the applicant's participation as a vendor in the sale process was of itself sufficient action or sufficient effort to bring the respondent, Mr Brinskele, and Lomb together, and to establish the opportunity for alternative employment, which crystallised as a result of that sale process.

PN1182

In other words, your Honour, the applicant arranged a sale of business to a purchaser who was willing to continue the operation of the Ajax Laboratory and to employ some existing staff on terms no less favourable. That's consistent, your Honour, with the fundamental proposition about in normal circumstances severance pay not being payable on a transmission of business.

PN1183

If there is any doubt, in addition to that fact, the applicant took several other steps in order to bring about or crystallise the offer of employment that arose from Mr Lipman. Firstly, the business sale agreement. Mr Bastounas's evidence is that there is a clause, which is clause 8.11 in the business sale agreement, which provided that Lomb, if it were to make offers of employment to Nuplex's employees, had to do so on terms no less favourable. That provision was included in the business sale agreement at the behest of Mr Bastounas, the applicant. It was done so because Mr Bastounas expressed a desire to Mr Parsons from Lomb, in the negotiation of the sale, that Nuplex desired to preserve jobs. That's at exhibit Nuplex 4 at paragraph 10.

PN1184

Secondly, from 1 November 2006 the applicant provided Mr Lipman, general manager of Lomb, with access to an office at the Seven Hills site which he could use freely to meet with and observe the applicant's employees, including Mr Brinskele, which Mr Lipman did. It also did so in order to facilitate Mr Lipman observing the work of the employees at the Seven Hills site, including Mr Brinskele. The evidence is that Mr Lipman utilised that office regularly throughout November and December and I think he attended the Seven Hills site, in my submission, approximately two days per week during which he observed Mr Brinskele performing his work, at Nuplex 6 at paragraphs 19 to 20.

PN1185

The applicant's general manager, Mr Bastounas, also made Ms Hardie, the human resources manager, available to Mr Lipman and required Ms Hardie to provide any information to Mr Lipman that he required, in considering whether to make offers to Nuplex's employees. Ms Hardie did so in providing documents such as the spreadsheet setting out the accrued entitlements of Mr Brinskele and others to Mr Lipman.

PN1186

Critically, your Honour, can I take you to exhibit Nuplex 6 at paragraph 27; that's Mr Lipman's affidavit. Mr Lipman's evidence, about a quarter of the way down that paragraph at the sentence beginning, "I was grateful", is that:

PN1187

I was grateful that Nuplex assisted me in being able to speak to Nuplex employees by providing me with an office which I could use at the Nuplex site for the purpose of having meetings with various Nuplex staff. Nuplex employees were also freely made available to me to speak with during working hours and with a view to my being able to work out if I would offer them employment with Lomb. It was as a result of my discussions with various key Nuplex employees that I determined that Mr Brinskele would be a valuable employee of Lomb. The fact that every time I had a discussion with a Nuplex employee concerning which lab employees should be made offers of employment to, from Lomb, Mr Brinskele's name was always stated as a critical and important lab employee to be employed by Lomb. Those discussions with various key Nuplex employees at the Nuplex site during the period was the main reason for my decision to make an offer of employment to Mr Brinskele.

PN1188

Your Honour, those discussions took place as a result of the applicant's actions to facilitate Mr Lipman in undertaking those discussions and in undertaking any observance in the work being performed by Mr Brinskele. In other words access to the site given to Mr Lipman by Nuplex, and free access to its employees, was a critical factor in the making of the offer to Mr Brinskele.

PN1189

In addition, Nuplex's senior officers including Mr Bastounas, Ms Hardie, the business manager Mr Ogali, and the regulatory officer Mr Sadler, all positively recommended to Mr Lipman that Mr Brinskele should be employed. I've set out the relevant references to the evidence there in paragraph 28 of the submissions.

PN1190

Finally, your Honour, Mr Bastounas himself, a group general manager, positively encouraged the respondent to accept the position with Lomb, in my submission. The reference there is at his affidavit at paragraphs 18 and 22. For those reasons, your Honour, you can be satisfied that the actions of the applicant in these proceedings were sufficient to fulfil the requirement of having obtained the offer of acceptable alternative employment.

PN1191

Fifthly, your Honour, can I turn to the issue of the acceptability of the offer. I do that by reference to those six various criteria which I outlined in my opening. Starting with transferable credits, the evidence is that in the respondent's statement he concedes that Mr Lipman told him, at least with respect to sick leave, annual leave, long service leave, those accrued entitlements would go over to Lomb. The concession is consistent with the terms of the offer of Mr Lipman in annexure AL2 to his statement. Those entitlements were based upon the full period of Mr Brinskele's past service with Nuplex and its predecessors.

PN1192

THE SENIOR DEPUTY PRESIDENT: Well you know my view. I'm still troubled. When you look at paragraph 29 of Mr Lipman's statement he says:

PN1193

Shortly after my discussion, Ms Hardie gave me a copy of Nuplex's standard letter of appointment. I wanted to make sure that the terms and conditions to be offered to Lomb by Lomb were the same as Nuplex's terms and conditions of employment.

PN1194

So he is looking at the letter which Ms Hardie has given him, which we have seen, and he then makes that offer. There is no reference to redundancy entitlements in that letter and he seems to be describing the offer put by him and saying the comprehensive offer, which he seems to have confidence in, is going to be acceptable because it's in the same terms and conditions of employment. It's as if the other matter were something he omitted from his consideration. There is no mention of it in 29.

PN1195

MR CHIN: Well your Honour has heard my submissions in relation to the recognition of the past service as continuous service. In my submission there is no doubt about that when one looks at Mr Lipman's offer and the letter of offer which is unequivocal on that proposition.

PN1196

THE SENIOR DEPUTY PRESIDENT: Yes, you say that, and we have had that discussion.

PN1197

MR CHIN: Yes, your Honour.

PN1198

THE SENIOR DEPUTY PRESIDENT: But he says he is making offers on the same terms but his evidence is that there is no way he would have paid an entitlement, if redundancy arose, on the same terms as those paid by Nuplex, even if the period were calculated in the way which you say.

PN1199

MR CHIN: In my submission, your Honour, that's not quite correct. The evidence of Mr Lipman is that he would have paid the statutory entitlements. In my submission the statutory entitlements would have carried over, and I will go to this point in due course, by operation of the Workplace Relations Act.

PN1200

THE SENIOR DEPUTY PRESIDENT: Yes, but he would not have paid the entitlement calculated in the way in which the Nuplex agreement provided.

PN1201

MR CHIN: Lomb, in my submission, would have been obliged to pay under the Nuplex agreement, at least for a period of 12 months after the transmission of business by operation of the Workplace Relations Act, and I will take your Honour to that in a moment. But so far as Mr Lipman's evidence is concerned although he was not conscious within his mind what the standard was, his evidence was that he would have complied with the statutory obligations, or Lomb would have complied with its statutory obligations.

PN1202

THE SENIOR DEPUTY PRESIDENT: Yes. It wouldn't have been of much benefit to Mr Brinskele if he had been made redundant a year and a day later.

PN1203

MR CHIN: No, your Honour, but it does ameliorate the concern about the redundancy standard. In my submission your Honour needs to - - -

PN1204

THE SENIOR DEPUTY PRESIDENT: Anyway, we will look at the transcript and if you think it's necessary you can have an opportunity to put to me things in the transcript that support your submission.

PN1205

MR CHIN: Yes, your Honour.

PN1206

THE SENIOR DEPUTY PRESIDENT: When it's available. Yes.

PN1207

MR CHIN: Yes, your Honour. In respect of remuneration the respondent was employed by the applicant on an annual salary of $62,040. If your Honour goes to the agreement standard, the highest rate provided for the highest graded QC Laboratory analyst was $52,000 per annum. Mr Brinskele was paid above that rate and the offer, as evident in the evidence on AL2 and the statements of Mr Lipman to Mr Brinskele, was that the remuneration would be the same; so there is no change there.

PN1208

In terms of the nature of work, in my submission your Honour, the offer of employment made by Mr Lipman did not require Mr Brinskele to undertake any duties that he had not already been undertaking for Nuplex at the Seven Hills site. Can I ask your Honour to refer to exhibit Nuplex 6, Mr Lipman's statement, at paragraph 66.

PN1209

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1210

MR CHIN: This is the paragraph to which Mr Brinskele later refers in his statement, which I will take your Honour to, where Mr Lipman outlines what the position would entail. The starting point, your Honour, was the evidence of Mr Lipman was that his duties, once the lab commenced, would be the same as what he performing with Nuplex. He goes on to say in paragraph 66 that:

PN1211

Mr Brinskele would have been required to supervise and conduct chemical testing and to do the following -

PN1212

and he lists a number of duties there which I won't read out. In my submission all these duties, your Honour, the evidence shows were duties which were undertaken by Mr Brinskele to varying degrees at Nuplex. To make good that proposition one has to have regard to the evidence of Mr Verges, Mr Brinskele's manager. Can I ask your Honour to turn to Mr Verges's affidavit. It's exhibit Nuplex 8, starting at paragraph 24.

PN1213

In paragraph 24 Mr Verges outlines the duties that he performed in relation to the laboratory facility and they include:

PN1214

Approving purchases for the lab facility; approving and issuing certificates and analysis, about which your Honour has heard yesterday; making decisions about tested materials; ensuring all process control testing and final product testing is documented; and approving leave of laboratory staff.

PN1215

He goes on later in this statement, your Honour, from paragraph 35 on page 7 of his affidavit where he states that in relation to those duties that he was performing, Mr Brinskele also issued certificates of analysis. Not NATA certificates of analysis, about which your Honour heard yesterday, but in any event the laboratory at the Riverstone site was not issuing NATA certificates since 2002, for the reasons that Mr Verges gave in his affidavit. So that Mr Verges says, "Look, Mr Brinskele was, in my absence when I was not in the lab and when I was on annual leave, issuing those certificates".

PN1216

At paragraph 37 he also says Mr Brinskele would have to make the same sort of decisions about tested materials, whenever he had to approve certificates of analysis. Further, Mr Brinskele would provide input in relation to testing techniques and methods and also on occasion undertake reviews of those testing techniques.

PN1217

The question arises, your Honour, what does Mr Brinskele have to say about that evidence and in his statement - does your Honour have a copy of Mr Brinskele's statement?

PN1218

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1219

MR CHIN: Can I ask your Honour to turn to paragraph 33 of Mr Brinskele's statement. In paragraph 33 Mr Brinskele refers to Mr Lipman's affidavit, paragraph 66, the initial paragraph I took your Honour to, where he lists out the terms or the duties involved in the laboratory manager position. He says in relation to it that apart from issuing non-NATA certificates, Mr Verges performed all those other duties, not himself.

PN1220

In an effort to distance himself or the nature of his position in Nuplex from the one that was proposed by Lomb, he denied that he made decisions about tested materials such as whether to approve or reject a tested sample, by this statement. But your Honour will recall that in cross-examination this was not correct because he accepted that he did make those decisions when approving certificates of analysis in Mr Verges's absence.

PN1221

By his statement in paragraph 33 he also, for example, denied reviewing testing techniques and methods. He says only Mr Verges did that. But in cross-examination, in my submission your Honour, Mr Brinskele accepted that he occasionally did so, albeit along with other analysts. Your Honour would prefer, in my submission, where there is a conflict, the evidence of Mr Lipman and Mr Gonzalo, which was in my submission careful and detailed; and in respect to Mr Verges, who in my submission was an objective witness, a long-standing manager of Mr Brinskele, as to the duties that Mr Brinskele performed.

PN1222

When one looks at the parts of Mr Verges's affidavit, to which I took your Honour, and the nature of the position at Lomb, one arrives at the conclusion, in my submission, that what would have been asked of Mr Brinskele at Lomb was nothing more than what, to varying degrees, he was performing at the Nuplex lab site at Riverstone.

PN1223

There is also evidence, your Honour, that the volume and nature of the chemical testing to be conducted at the Lomb lab is comparable in terms of the nature and volume of the chemical testing conducted at the Riverstone site; and also that the testing procedures and the protocols used at the Lomb lab are the same as those that were employed at the Riverstone site.

PN1224

Even if the Lomb position entailed some greater responsibility for work, in the absence of an equivalent managerial position as Mr Verges, because the evidence is that Mr Brinskele at the Riverstone site with Lomb would have reported directly to the site manager; even if that were so, again that's not a matter that compromises the acceptability of the offer because the applicant was entitled under the preserved collective State agreement to require Mr Brinskele to undertake work of a wider range of duties, wider than his main job functions, including work that was within his skills and training but which might have been incidental to or peripheral to his main work duties.

PN1225

Your Honour will see at exhibit Nuplex 1 the preserved collective State agreement at clause 48, that there is a specific provision in that agreement for Nuplex to require Mr Brinskele to have undertaken that extended range of work. So the fact that Lomb may have done so does not alter the nature of the positions, comparatively speaking.

PN1226

The period during which the laboratory was under construction at the Lomb site, in my submission, does not relevantly compromise the acceptability of the Lomb offer for these reasons. Firstly, Mr Brinskele would have remained at the Seven Hills site with Nuplex, albeit employed by Lomb had he accepted the offer, until 31 March 2007 when the business was uprooted from Seven Hills and transplanted to Riverstone. The evidence of Mr Lipman is that some ad hoc testing was being done at the Lomb site in Riverstone at a transitional structure since December 2006; and was work in which Mr Brinskele could have been involved.

PN1227

Mr Lipman also gave evidence that he employed at least one laboratory analyst, Mr Elliott, since September 2007. In my submission, Mr Brinskele could have been - I withdraw that. The evidence of Mr Lipman was that he told Mr Brinskele that in the intervening period, during the construction of the new laboratory, Mr Brinskele would have been involved in assisting the design and construction of the new laboratory.

PN1228

THE SENIOR DEPUTY PRESIDENT: He was just filling in time though, wasn't he? I mean, he would have been testing a bit of equipment and providing some advice on design and perhaps, given his experience, those were matters that he could be of assistance with. But until the lab was built the substantive position was not available.

PN1229

MR CHIN: The substantive position was available. The work duties of performing the work of actual testing would not have been available for a period of time.

PN1230

THE SENIOR DEPUTY PRESIDENT: Well that's the same thing, Mr Chin, and I'm putting this to you. Whilst these tests are objective, you have to take into account something about Mr Brinskele and it's clear from his work record that he is a very active person. He has had very few sick days, absences from work. His own evidence is that he is a workaholic, or he seems to be a hard working person, and that evidence was not contradicted, who applies himself in an active fashion to his work.

PN1231

It doesn't seem to me to be a very attractive proposition, subjectively or objectively, to fill in time in this fashion for a person in a professional role. But I mean it's no to say that there were no tasks to be done, but there was certainly not the substantive tasks that might have been offered or available when, and if, the laboratory commenced work just recently in April. For that interim period it was a different job really.

PN1232

MR CHIN: Your Honour might approach the question by making this inquiry. Could it be said that if Nuplex had decided to construct a new laboratory at the submissions, that under Mr Brinskele's employment with Nuplex that Nuplex could not have drawn upon Mr Brinskele's experience and skills in assisting and designing and assisting in the construction of that new laboratory.

PN1233

THE SENIOR DEPUTY PRESIDENT: I don't say they could not. what I am saying is that he would undoubtedly have continued in his other job in the meantime and might have been tyre kicking.

PN1234

MR CHIN: But your Honour even if Nuplex had shut down a lab and spent some intervening period in developing a new lab, could it be said that Nuplex wasn't entitled to utilise Mr Brinskele's experience to assist in designing the new lab?

PN1235

THE SENIOR DEPUTY PRESIDENT: I'm not sure the tests are exactly the same though, and Mr Brinskele might have liked to have examined his options if that was what happened to him, in his arrangements with Nuplex. What we are talking about here is a change that is imposed upon him by the commercial arrangements between Nuplex and Lomb. All I'm saying to you is it's not possible o characterise them as the same thing in this circumstance, as if the Riverstone lab were immediately available. It's a significant interim period between March and March, a year of other duties. Not a short period in the life of a person of Mr Brinskele's age and experience. So I just don't think you can characterise it as the same thing.

PN1236

MR CHIN: I heed your Honour's concern. Certainly there was a difference for that interim period; certainly that's not at issue. In my submission, however, when one looks at the positions on offer, what Lomb was proposing was no more than what Nuplex might also legitimately have proposed for Mr Brinskele in his position with Nuplex.

PN1237

Now your Honour would take into account the hiatus period but the principles suggest and establish, your Honour, that an employee in this situation is obliged to minimise the hardship that arises from a redundancy. On a continuous basis had he accepted the offer he would have been continued to have been paid at the same remuneration for the period. It must be accepted that there would have been a hiatus in the performance of his actual normal duties.

PN1238

THE SENIOR DEPUTY PRESIDENT: Yes, it's a professional job. It's 12 months in his professional life not engaged in a task that adds anything to his experience or CV. I think his level of seniority is a relevant consideration there, although of course that's a matter that makes him attractive to Lomb.

PN1239

MR CHIN: Yes, your Honour.

PN1240

THE SENIOR DEPUTY PRESIDENT: Anyway.

PN1241

MR CHIN: I've made my submissions in relation to that.

PN1242

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1243

MR CHIN: Can I address seniority, that your Honour has raised. In my submission the position offered at least preserved Mr Brinskele's level of seniority. It's clear on the evidence that Mr Brinskele wast the most senior laboratory[sic] at the Ajax Finechem laboratory at the Riverstone site. Mr Gonzalo's evidence is that he was the only person to report directly to him. Mr Brinskele had some difficulty in accepting that proposition in cross-examination, although I think the effect of the evidence ultimately was that he conceded that he did report directly to Mr Verges, but also that other analysts reported to him - sorry, other laboratory analysts reported to him, that is Mr Brinskele.

PN1244

THE SENIOR DEPUTY PRESIDENT: It wasn't proposed that there be some person more senior than Mr Brinskele at Riverstone, was it?

PN1245

MR CHIN: No.

PN1246

THE SENIOR DEPUTY PRESIDENT: He seemed to be a person who preferred to have a person to report to, from his evidence yesterday.

PN1247

MR CHIN: He would have reported to the site manager at the Riverstone lab.

PN1248

THE SENIOR DEPUTY PRESIDENT: In relation to his professional work.

PN1249

MR CHIN: Yes, your Honour, but the fact remains, in my submission, effectively at the Nuplex lab at the Seven Hills site Mr Brinskele was the most senior employee within that lab, and the position at the Lomb Riverstone site would have been essentially the same in that he would be the most senior person at that lab. It can't be said that if - - -

PN1250

THE SENIOR DEPUTY PRESIDENT: In terms of responsibility for outcomes in Nuplex in the Seven Hills lab, the buck stopped with Mr Verges and at Riverstone it would have stopped with Mr Brinskele.

PN1251

MR CHIN: The buck also stopped with Mr Brinskele at Seven Hills, at least in Mr Verges's absence.

PN1252

THE SENIOR DEPUTY PRESIDENT: In his absence.

PN1253

MR CHIN: Yes. So he is not unused to that responsibility, in my submission.

PN1254

THE SENIOR DEPUTY PRESIDENT: For all of Mr Verges's leave?

PN1255

MR CHIN: Yes, and also when Mr Verges was otherwise absent or unavailable.

PN1256

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1257

MR CHIN: According to Mr Verges's evidence.

PN1258

THE SENIOR DEPUTY PRESIDENT: Okay.

PN1259

MR CHIN: One has to keep in mind that Mr Verges at that Seven Hills site was responsible for managing quality assurance issues across the whole site. There were five other substantial businesses at the site in addition to Ajax Finechem.

PN1260

In terms of job security, your Honour, if I can turn to that. The Lomb offer was for a salaried full time position. There's no suggestion there was any more precarious employment security arising from any other form of employment such has part-time or casual work. Job security was determined or considered by the Full Bench of the Commission in the review of the TCR case, the second case. There's no evidence to suggest, in my submission, that the position of laboratory manager with Lomb would have been anything other than secure, and I will go to the evidence in due course.

PN1261

But your Honour can I now address the issue of the redundancy entitlement?

PN1262

THE SENIOR DEPUTY PRESIDENT: Yes, why don't we pause there.

PN1263

MR CHIN: Yes, your Honour.

PN1264

THE SENIOR DEPUTY PRESIDENT: Seeing as it's a new matter. Yes, shall we have a cup of coffee?

PN1265

MR CHIN: Yes, your Honour.

PN1266

MR REITANO: Could I inquire through your Honour whether your Honour requires to - whether we will sit on, as it were, to make sure that the case finishes? I understood my friend was going to be 40 minutes and that's why I - - -

PN1267

THE SENIOR DEPUTY PRESIDENT: Yes, I'm not going anywhere today, Mr Reitano. The matter will finish.

PN1268

MR REITANO: It means I have to move some things and I just need to know if your Honour is going to sit late, that's all.

PN1269

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1270

MR REITANO: Thank you, your Honour.

PN1271

THE SENIOR DEPUTY PRESIDENT: Well, I'll sit as long as you need.

PN1272

MR REITANO: Thank you, your Honour. I had understood - and I didn't press yesterday for my friend to start addressing yesterday because he - - -

PN1273

THE SENIOR DEPUTY PRESIDENT: I've interrupted a lot this morning, Mr Reitano. I think that has added to things. But when are your commitments? We will go off the record for a moment, thank you.

<SHORT ADJOURNMENT [11.26AM]
<RESUMED [11.51AM]

PN1274

THE SENIOR DEPUTY PRESIDENT: Yes Mr Chin.

PN1275

MR CHIN: Thank you, your Honour. Prior to the adjournment I was addressing your Honour in relation to job security; I made some submissions in relation to that. I've set out at paragraph 45 of the written submissions the basis upon which it's submitted that as a matter of the operation of the Act, in particular schedule 9 at clause 5.1 or subclause 1 of the Act preserves the redundancy entitlements under the preserved collective State agreement for a period of 12 months.

PN1276

I won't go in detail; it's set out in the written submissions, if it please your Honour. So that submission arises that insofar as Mr Brinskele's entitlement to redundancy by operation of law, that was preserved for a period of 12 months; and your Honour would take that into account in ameliorating, in my submission, any concerns that your Honour has in relation to carrying over of accrued redundancy entitlements.

PN1277

Can I pass over to the issue of location. The Riverstone site, the evidence suggests, is only about 19 kilometres away from the Seven Hills site. When the objective circumstances are looked at in a global sense, in my submission, no relevant hardship arises from the prospect of the respondent having to commute by train to the new site at Riverstone. Your Honour will have in mind the principle in Re Derole that rejecting an offer of employment based upon a subjective or personal preference to work close to home is something that puts entitlement to redundancy pay at risk, having regard to the common need to travel some distance to work.

PN1278

Finally, your Honour, can I address the issue of the respondent's cooperation in terms of the offer of employment. As I've noted there is a reasonable expectation that the respondent would seek to minimise any hardship that arises from a threatened redundancy, and that a failure to accept a reasonable offer may disentitle him to redundancy payments under the agreement. In my submission that circumstance arises in this case.

PN1279

The respondent's failure to cooperate is manifested in several ways. Can I address your Honour on two aspects of that non-cooperation. The respondent asserted in his evidence that the absence of a laboratory at Riverstone was a matter of concern to him and contributed to his unwillingness to work for Lomb. However the respondent's evidence was also that he did not ask Mr Lipman when the proposed laboratory at the Riverstone site would be completed. Further, his evidence was that he did not ask Mr Lipman what it was proposed that he would be doing during the construction period or development period of that laboratory.

PN1280

Secondly, when it was put to the respondent in cross-examination that Mr Lipman's statement, made to him on the meeting of 4 December 2006 to the effect that his existing salary and his accrued entitlements would transfer to Lomb, that that was made in connection with an offer of employment that was made at that meeting, your Honour will recall that the respondent's evidence was, and I quote, "I may not even have been listening".

PN1281

The respondent's evidence in this regard is a manifestation, in my respectful submission that the respondent had closed his mind to any prospect of alternative employment, because as he told Mr Lipman and Mr Bastounas, he wanted a redundancy payment from the applicant. Moreover, your Honour, the respondent's evidence at paragraph 37 of his statement unequivocally and somewhat emphatically is that he was not prepared to accept any position that could have required him to work anywhere else in Sydney, New South Wales, Australia or the world for that matter.

PN1282

That's the respondent's evidence, irrespective of any alternative location. That is a manifestation, in my submission, of the respondent's unreasonable closed mindedness in relation to the offer of employment that was made to him by Mr Lipman. Especially having regard to the principles enunciated in Re Derole about the location of work.

PN1283

Your Honour, for those reasons, in my submission, the Commission should determine that the Lomb offer was acceptable alternative employment and should grant an order exempting the applicant from an obligation to pay severance pay under the agreement. Those are my submissions, your Honour.

PN1284

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Reitano?

PN1285

MR REITANO: Can I start by dealing with two matters together, because they conveniently arise out of Nuplex 1. That's the first thing I want to do. Those two matters concern the issue of the enabling provision in the regulation and secondly, the issue about transmission of the agreement. I want to deal with those right up front, even though they don't logically fall into any sequence. It's because they both concern the operation of the agreement and the operation of the Act. I then want to provide your Honour with a written submission and footnote of some other things that have arisen out of this morning, and emphasise a few things.

PN1286

There is one thing in the written submission that I will have to alert your Honour to now, as a result of some things that my learned friend said. It's now very much an alternative submission to the one that I'm going to make orally, and I'll deal with that as well.

PN1287

Firstly, could I ask your Honour to turn to Nuplex 1, which is the enterprise agreement?

PN1288

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1289

MR REITANO: Your Honour will recall a couple of things about this agreement, that my learned friend put to your Honour and they concern what was said in various different ways to be the way in which your Honour should avoid putting too literal an adherence to the agreement, in view of broadly and given weight and all those things.

PN1290

First, your Honour will see in clause 5, the clause that my learned friend took your Honour to - and could I ask your Honour to bear in mind that it's an agreement made under the New South Wales legislation and I will give your Honour a copy of the relevant section in a moment. But clause 5 is headed Relationship With The Parent Award and it provides:

PN1291

This agreement shall be read and interpreted wholly in conjunction with the parent award.

PN1292

Plural, because there are a number of them, and they are articulated in clause 3, set out in clause 3 as they stood at the signing of this enterprise agreement. So at the time that the enterprise agreement is made, read it wholly in conjunction with those awards, and interpret it wholly in conjunction with those awards. It's the next section that my friend incorrectly - and I don't say it critically of him because I did it too - reads the next sentence. The next sentence is:

PN1293

The term -

PN1294

Singular:

PN1295

- of the awards -

PN1296

Plural:

PN1297

- shall be incorporated into the term of this enterprise agreement.

PN1298

That is not a reference to picking up each and every one of the terms, plural, of each award and putting it into the agreement. Rather it is a reference to the duration of the documents and the duration of the award and the duration of the enterprise agreement. Why, as a matter of logic? As I say, I will give your Honour the relevant sections in a moment. Because the parties envisaged that when they were going to negotiate over anything to do with terms and conditions of employment they would do it all in one go at the same time.

PN1299

Could I provide your Honour a copy of some of the relevant sections of the New South Wales Act. Firstly, sections 41 and 42 and secondly, section 16. I've only copied these because they are the only ones that I need to refer your Honour to. I don't think any of the other sections affect the submission I'm making. Firstly could I ask your Honour to go to section 41(1) which provides:

PN1300

The provisions of an enterprise agreement prevail over the provisions of any State award of the Commission that deal with the same matters insofar as the provisions of the State award apply to a person bound by the enterprise agreement.

PN1301

So if you have a clause dealing with redundancy in an agreement and you have a clause dealing with redundancy in an award, the agreement wins. It prevails. I'll come back to the practical application in a moment:

PN1302

This subsection is subject to the terms of the enterprise agreement.

PN1303

That does not affect anything here because there are no relevant terms of the enterprise agreement.

PN1304

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1305

MR REITANO: Could I ask your Honour to turn then to section 42, and this is why I make the submission I do about duration:

PN1306

An enterprise agreement applies for the period specified in it as the nominal term and after that period until terminated in accordance with this part -

PN1307

and it goes on. So it has to have a term for which it applies. Similarly, without labouring the point, if I turn to section 16, the other section I gave your Honour, your Honour will see that an award also similarly must have a term. If your Honour looks at the award here, it has a term that expired in 2000. If your Honour looks at the agreement here, it has a term that I think expired in June 2007.

PN1308

So that the award term is brought up so that you can't go round undermining the enterprise agreement by reference to variations to the award and the like. Both are intended to have the same term and inspire at the same time. Whether that's effective is another matter, but what the intention of the second sentence of clause 5 is, is nothing to do with picking up the redundancy provision of the award and putting it in the agreement. As my learned friend said, it would be nonsense and it is; so that annexure C wins.

PN1309

Annexure C is the redundancy provision associated with Mr Brinskele's employment, not clause 25 of the award. What are the consequence of that? The first consequence is that this application is completely incompetent, because clause 2.1 of the regulations can have no work to do because there is no enabling provision in the preserved State agreement that would allow your Honour to exercise any function. Annexure C does not have a facilitative or exempting provision anywhere to be found. Regulation 2.1 that my friend invokes here only applies if there is such a provision. As he said, we don't come here to vary the agreement. We rely on that provision, and it only applies if there is such a facilitative provision.

PN1310

As I say, could I put that as the primary submission that we want to make in respect of the incompetence of the application. In the written document that I'm going to give to your Honour there is an alternative analysis that accepts, I must say I think dubiously, but accepts the construction that my learned friend wants to put on the second sentence; that is the terms of the award are incorporated; that is with an S that's not there.

PN1311

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1312

MR REITANO: Could I then come to the second submission that I want to make about the agreement because it is as forceful as the first. Your Honour heard my learned friend yesterday after I briefly articulated what I saw as the issues, rise to his feet and say something to the effect of, "I'm surprised by what my learned friend says about transmission". But of course he has overlooked - I think he said, "He has overlooked it because it was on my list of authorities".

PN1313

MR CHIN: I didn't say that.

PN1314

MR REITANO: He says he didn't say that. I'm not trying to attribute words to him that he didn't say but he suggested that schedule 9 of the Workplace Relations Act, clause 19, was the answer to the transmission. Because there was a transmission of business from Nuplex to Lomb he says that the agreement transmitted. Your Honour will recall that I said, "No, that's not right". Neither the New South Wales Act nor the Federal Act achieves the result of the transmission of the agreement. Sure, the business may have transmitted but not the agreement.

PN1315

Why? Because your Honour will recall the evidence of everyone, and it's all common ground in bucket loads, that Nuplex at Seven Hills, at the address that it was conducting its business, closed down on 30 or so of March 2006. The business was picked up, lock stock and barrel, but one thing didn't come with it and that's the address - and that's important - and put over at Riverstone.

PN1316

Could I then ask your Honour to go back to Nuplex 1, the agreement, again?

PN1317

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1318

MR REITANO: It's only one sentence and it's in clause 4:

PN1319

This agreement shall apply at the company's premises located at 8 Abbott Road, Seven Hills.

PN1320

This agreement does not apply anywhere else. Whatever was transmitted, this agreement was not. The business may have transmitted, the agreement may have transmitted, but it did not transmit so as to apply to people who were working at Riverstone. It would be the same scenario if, for example, the agreement said it applies to the classification of widget maker and Lomb offered Mr Brinskele work as a nut cracker. Similarly, this agreement could not be said by reason of some transmission to apply, because it only applies to widget makers. In this case it only applies at a given address.

PN1321

It does not apply to anyone working at Riverstone or anywhere else in the world or on Mars. Thus the terms and conditions of the agreement, contrary to what my learned friend has said to your Honour, did not transmit to Lomb either for 12 months or at all, not for one minute.

PN1322

Mr Brinskele lost, amongst other things, the substantial benefit that appendix C refers to, 33 years' service, $100,000 worth of redundancy pay. Whatever version of Mr Lipman's evidence one takes, again even taken at its highest, my friend cannot point to any statutory entitlement that Mr Brinskele would have had for the same sort of redundancy pay that he had whilst he was employed with Nuplex.

PN1323

Could I go back to your Honour's discussion with my learned friend. Mr Lipman's evidence, whether it be that he was going to take over the continuity of service for redundancy pay or not, was that he would only pay whatever the statutory entitlement was; presumably a reference to 20 weeks' pay. Presumably. But there's no statutory entitlement that Mr Lipman could refer to that approximated what Mr Brinskele was entitled to at Nuplex; nothing anywhere.

PN1324

Could I then hand to your Honour a written outline, which is really a written submission. If I have left in - and I tried not to, and I tried to read it closely - any submissions to the sick leave point and the failure to take the sick leave over, I withdraw those.

PN1325

THE SENIOR DEPUTY PRESIDENT: I'll ignore them. Do you two want your submissions marked?

PN1326

MR CHIN: If it please your Honour.

PN1327

THE SENIOR DEPUTY PRESIDENT: Yes?

PN1328

MR REITANO: Does your Honour intend to mark them?

PN1329

THE SENIOR DEPUTY PRESIDENT: Yes, I'm just waiting for a pen since mine just ran out. Thank you.

EXHIBIT #BRINSKELE2 RESPONDENT'S WRITTEN SUBMISSIONS
EXHIBIT #NUPLEX13 APPLICANT'S WRITTEN SUBMISSIONS

PN1330

THE SENIOR DEPUTY PRESIDENT: Yes, go on.

PN1331

MR REITANO: As I say, I don't intend to read the submissions to your Honour. I just intend to footnote them and walk your Honour through some of them. But the first section of the submissions from paragraph 3 through to paragraph 14 deal with what I talk about as the alternative submission to the Commission being without power, to the one that I've already just put to your Honour orally. It is all devoted to what I put as the alternative, that accepts that there is an S on the end of the word term in clause 5; but there is not.

PN1332

We say even if I leave my learned friend on the ground of incorporating all of the terms in both documents, all that can be done to reduce or exempt severance pay in this case is to exempt or reduce severance pay under clause 25(1) of the redundancy award provision, and the Commission does not have power to play with appendix C.

PN1333

I have also referred in the written submission to the two authorities that my learned friend deals with of Richards DP, because both of them - and that's in paragraph 8 - both of them highlight the simple fact that this Commission is powerless to amend or vary the agreement absent the enabling provision.

PN1334

Finally, could I just give your Honour a reference to - my learned friend told your Honour that Geo Bond stands for avoiding a too literal adherence to the terms of the award and to view the matter broadly. It also stands for the proposition that your Honour can't give an award or an agreement an effect that your Honour considers might be desirable or just or different from what it actually provides for. That's in the reference that my friend gave.

PN1335

Could I give your Honour a reference as well to the City of Wanneroo, W-a-n-n-e-r-o-o v Holmes, where I think his Honour French J there brings all the authorities together at 30 IR 362 at 378 to 379. When your Honour reads the award into the certified agreement, as my learned friend would have your Honour do, your Honour must give effect ultimately to what the words say. Not some desirable outcome that your Honour might think is a good idea.

PN1336

In any event we say that it is entirely plausible that the parties to an enterprise agreement, as they did here, would have contemplated that for the deal, for the agreement that was done, that there would be an automatic right absent any enabling provision to change appendix C; that there would e an automatic right. It is a different regime to that which is found in clause 25 of the award; a completely different regime. It contemplates things like voluntary redundancy and a whole range of other matters.

PN1337

Could I then turn to the question of obtaining and my learned friend dealt with obtaining at some length. I've referred in the written submission to an authority of the New South Wales Commission, mainly because I was in it, where the New South Wales Commission dealt with the same issue of obtaining. The context of the New South Wales Commission's decision was fairly close to the circumstances that your Honour is considering. An outgoing employer who was offloading its business, that had a fairly large workforce, and an incoming employer that wanted a workforce.

PN1338

That's not quite right here because we know that Lomb didn't want anyone apparently, until perhaps recently, other than Mr Brinskele. So that's not quite the same but nonetheless it decided apparently that it wanted Mr Brinskele, and I will come to the references in the evidence for that in a moment. But you have people moving from position or employer A to employer B where there is a lust and desire on behalf of the purchaser to have that workforce, in this case to have a twelfth or one-tenth of that workforce, Mr Brinskele.

PN1339

The New South Wales Commission dealt with the issue or question of obtaining in those circumstances, and could I hand to your Honour a copy of firstly, the first instance decision of Commissioner McKenna and secondly, the judgment of the Full Bench in that case. They are referred to in the written document, and I don't intend to read them to your Honour. The references are found in the written document. But they apply Derole and they apply Derole in circumstances that are not far different from those here.

PN1340

I do want to deal with two specific references to the evidence. My friend puts a whole bucket load of things that were allegedly done to obtain the employment. Let me say this, as at 27 September, Lipman had made up his mind that he wanted Brinskele and anything that the other mob did - sorry, that the applicant did - after 27 September is pure window dressing. Because Lipman, as at 27 September, had said, "You're my man" and he had decided that he wanted to employ Mr Brinskele. The references are found in Mr Lipman's affidavit, that is his first affidavit, at paragraph 15 and 22 and at Mr Bastounas's affidavit at 15, where he says in effect, "I've made up my mind. I want you on board".

PN1341

It had nothing to do, in my respectful submission, with having an office at the site or with being provided with any information. He quite easily could have said to Mr Brinskele, who he decided he wanted, "What are your terms and conditions of employment at the moment?" and it made no difference whether he was there or not as to whether or not he could find that information out; or that the employer, the applicant here, had in some way facilitated Mr Brinskele coming over.

PN1342

Then thirdly I want to say some things about what I've said about alternative employment, and that's in the section of the submission from paragraph 18 onwards. Could I say this: it would be an interesting exercise to say to your Honour - and I don't mean this in any way disrespectfully - that, "This Commission is closing down tomorrow and the legislature is going to create a new organisation called Fair Work Australia, probably maybe in a couple of months. You are not entitled to any redundancy pay; will you accept a job in probably what might be created in two or three months? By the way, we haven't filed any development application and we're not going to show you what the new organisation is intended to do. We don't want you to assume that you'll have an associate and a secretary or anyone reporting to you and there may not be a president or a vice-president". That last one should be taken as someone to report to, and I know that does not apply in judicial office in a strict way. "But all those things we can't tell you about". But of course you would regard that as adequate, acceptable judicial office.

PN1343

With respect, it only needs to be stated to see that it's nonsense. Mr Brinskele was absolutely right in his evidence when he said, "They wanted me. That was their objective, to get me on board, but I had something else in mind. I was protecting my position". If my learned friend could say with hand on heart that Brinskele was going to get four weeks for each year of service and paid out his accumulated untaken sick leave, in accordance with appendix C, if he accepted over 33 years with Lomb, then we could all go home. He either would not have a case here or alternatively he wouldn't be here.

PN1344

What he was at risk of, whether it be one week or 20 weeks, in my submission my recollection is - - -

PN1345

THE SENIOR DEPUTY PRESIDENT: Or 57 weeks in to his employment.

PN1346

MR REITANO: 57. I’m not sure why 57.

PN1347

THE SENIOR DEPUTY PRESIDENT: Well, if Mr Chin's argument is right, if the Act applies.

PN1348

MR REITANO: Yes, well I think it's 53 then, isn't it? I think he said 12 months.

PN1349

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1350

MR REITANO: Yes.

PN1351

THE SENIOR DEPUTY PRESIDENT: 12. I was adding, but go on. The point is the same.

PN1352

MR REITANO: He was at risk. He was at risk of losing - I don’t know what a hundred thousand is. It's more than a gorilla, a hundred thousand gorillas. He was at risk of losing a substantial payment that he had worked 33 years to build up an entitlement to and they were saying, "Come over here with us and work for us in a laboratory that we haven't built yet and by the way we'll just keep it in our back pocket that we haven't put in a development application for it either, and all these other things about operating the laboratory, we're not going to tell you about". You have got to be kidding. With respect, to submit that that in any way could be adequate alternative employment is mind-boggling, with respect to my learned friend.

PN1353

Only 20 kilometres away. 20 kilometres away from the old site; a lot further away from Mr Brinskele's home. He lived on one side of the old site. The new place was on the other side. That's point 1. Point 2 is it took no account, as the authorities tell us your Honour must, of his own circumstances. His wife drove to work, as your Honour heard. He had for many years walked to work at the old site. He couldn't possibly have walked to work to the new site, as he says in his evidence, and says it would have taken him in excess of 45 minutes, without knowing the train timetables, to get from one place to the other driving. We don't know how long it would have taken by train.

PN1354

All of those factors are relevant in the objective assessment that your Honour must make. Throw in no redundancy pay, in accordance with the Nuplex scale. Throw in only 20 kilometres away. I think it's Hornsby, from the city. I might be wrong, perhaps Parramatta from the city. But it's only 20 kilometres we are told. "In a laboratory that we haven't built yet, doing work" at least for some undefined and unknown period of time, "doing work that you have never done before", contrary to what my learned friend says, "Because we want you to either do nothing or sit around designing a laboratory". In circumstances where you have never been employed as a laboratory designer, ever.

PN1355

So from the city, Wetherall Park, Guildford, Challora, North Narrabeen, Blacktown, a 20 kilometre circle. That's the only difference; working in Sydney as against working in Blacktown. What is it, 20 kilometres? It is, with respect, completely mind boggling that anyone would suggest, in the circumstances, that that's adequate alternative employment.

PN1356

It is an interesting submission on the 53 weeks scenario, that Mr Lipman is still willing to offer Mr Brinskele employment. Now we are sure that he does not have the redundancy entitlement, with respect to my learned friend, and Lipman is not prepared to tell your Honour evidence led by the applicant. So one assumes that it wouldn't help it in its case to lead the evidence; evidence not led about the terms and conditions upon which Mr Lipman is now prepared to employ Mr Brinskele. He does not tell your Honour, "Oh, yes, I'll apply the Nuplex agreement, and yes, I'll fix up his problem with travel. I'll get him a cab to work every day". He does not tell your Honour anything about the terms and conditions of employment. Why? Because the inference is that it would not be helpful to their case.

PN1357

I don’t want to labour the point about the alleged desperate grab for money. All I can put to your Honour is that it's a valuable entitlement that he had in his previously employment, that he wasn't ever going to have anywhere near in his other employment. If the transmission provision worked in the way that my learned friend says, when Mr Brinskele said, "I'm concerned about my redundancy pay", then why didn't Lipman say, "It's the same as what you're going to get with Nuplex. If we make you redundant in two weeks' time you'll get the same".

PN1358

Your Honour will see references to conversations with Mr Bastounas and others. Mr Bastounas I think describes Mr Brinskele as an idiot for not accepting - being a bit of an idiot I think is the phrase - for not accepting the offer of employment with Lomb. In circumstances where he is forfeiting a valuable entitlement to $100,000, why didn't Bastounas say to Lipman or why didn't Ms Hardie say to Lipman, when she found out that he wasn't accepting the offer, "Well, you'd better give him an assurance that his redundancy pay is protected by law or protected by our agreement and he'll still receive $100,000 if he's made redundant next week"?

PN1359

That is vitally important in anything that your Honour must consider in the objective circumstances. If they were facilitating adequate alternative employment then they should have facilitated that fact to be communicated to Mr Brinskele. We know now, from Mr Lipman's evidence, that it was never intended. Mr Brinskele was indeed right; it was never intended that Mr Brinskele would have the same terms and conditions in respect of redundancy that he received at Nuplex.

PN1360

Your Honour raised yesterday afternoon in argument or debate with my learned friend this question - no, it wasn't, it was this morning, I apologise - this question: "When am I to consider it?" That is, should I consider it at the time, roughly 30 March 2007, and what was known then or should I consider it now? In this case it probably does not matter a whole heap because the one thing we know now is that Mr Brinskele's scepticism about them having a laboratory was proved right. That only confirms or serves to confirm what his concern was back then, about them having a laboratory.

PN1361

It's difficult to see though how your Honour could ignore the fact that nothing happened for over 12 months, and given that we now know that, inevitably one is driven to ask the question what would have happened after two or three months when the development application had not gone through and, according to Mr Lipman, Mr Brinskele was sitting in an office somewhere, not in a laboratory but in an office somewhere, designing a laboratory; and he had finished doing that. What was the next thing that might have happened to Mr Brinskele? He didn't have a laboratory to work in and he didn't have a laboratory to design anymore, and there was nothing on the horizon in terms of Blacktown Council giving any approval to build a laboratory for many months. Perhaps he might have been made redundant on one week or 20 weeks' pay. His concerns that he had at the time are confirmed by what ultimately happened to him.

PN1362

THE SENIOR DEPUTY PRESIDENT: Who is the person who has been employed, the ex-employee? Is it Mr Elliott?

PN1363

MR REITANO: There are two, your Honour. One was Mr Elliott and the other was Mr Ishmael Birkandan I think.

PN1364

THE SENIOR DEPUTY PRESIDENT: Were either of those people senior laboratory seniors?

PN1365

MR REITANO: Mr Brinskele's evidence was that Mr Elliott was as senior as him. He regarded Mr Elliott as his equal.

PN1366

THE SENIOR DEPUTY PRESIDENT: Yes, all right.

PN1367

MR REITANO: I think someone else gave evidence, and I don't think it was Mr Brinskele but it might have been him as well, that he was employed as a laboratory senior.

PN1368

THE SENIOR DEPUTY PRESIDENT: I think it was Mr Brinskele. Yes, thank you.

PN1369

MR REITANO: I think I asked Mr Lipman what was Mr Elliott employed at when he worked at Nuplex and I think he might have said a laboratory senior.

PN1370

THE SENIOR DEPUTY PRESIDENT: Right, thank you.

PN1371

MR REITANO: To the extent that your Honour has any discretion I've put a range of submissions to say that your Honour either does not have power because the enabling provision does not operate, or alternatively the condition precedent to exercising any power that your Honour may have, that is obtain adequate employment, has not been met.

PN1372

To the extent that your Honour gets past those two things could I put a third submission. I can't recall whether it has found its way into the writing - I don't think it has - and that's this, that your Honour would not exercise any discretion in favour of the employer for two principle reasons. It assumes, as I say, that your Honour must get over those two hurdles and my submission very much is that your Honour can't get over either.

PN1373

But if your Honour did have any discretion, there are two reasons why your Honour would not exercise the discretion in favour of this applicant. Firstly, it had every opportunity to make this application at a time proximate to the termination, where Mr Brinskele would have been placed in a position where he would know, if your Honour were minded to grant an exemption, that if he didn't accept the alternative employment that he was going to be dumped. That could have been done before 27 March 2007 and it was in their hands, not in his. He could not do anything to invoke the jurisdiction here, prior to that time, but they could and they chose not to. Indeed, they chose not to until Mr Brinskele commenced proceedings, until well after Mr Brinskele commenced proceedings to enforce what he apprehended were his rights.

PN1374

THE SENIOR DEPUTY PRESIDENT: When did he do that?

PN1375

MR REITANO: I don't have the other brief, your Honour. Can I take the question on notice, your Honour?

PN1376

THE SENIOR DEPUTY PRESIDENT: Well just approximately will do.

PN1377

MR REITANO: I think it was towards the latter part of last year.

PN1378

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN1379

MR REITANO: It may have been October or September.

PN1380

THE SENIOR DEPUTY PRESIDENT: Mr Vinski, do you know?

PN1381

MR VINSKI: October, 26 October.

PN1382

MR REITANO: Yes.

PN1383

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN1384

MR REITANO: The second thing is that your Honour will recall that everyone else got paid redundancy pay. Now if they were so eager to have someone in this position designing the laboratory, one might have expected at least Mr Elliott, but perhaps someone else, to be employed. The fact is there is a gross inequality here in the way in which Mr Brinskele has been treated in terms of other employees. Everyone else who he worked with received a redundancy payment. Mr Brinskele, with 33 years of service and $100,000 worth of redundancy is paid doughnut, and that would be a discretionary factor that your Honour would be entitled to take into account.

PN1385

Finally, could I say that my learned friend makes some submissions that, with respect, we would invite your Honour to completely reject for the reasons that I've already outlined, about Mr Brinskele behaving allegedly unreasonably or not cooperating. I only need say that your Honour doesn't get to those issues unless your Honour gets over the two hurdles of the empowering provision and obtaining adequate alternative employment, and comes to consider whether your Honour would exercise a discretion.

PN1386

All I can say about those is that they in fact go the other way. Had they cleared up things; if it is true and if it is right that Mr Brinskele would have received employment on terms and conditions of employment no less favourable, it would have been fairly easy for someone to say, "Here is the Nuplex enterprise agreement. Here is your letter of employment with Lomb. Here is whatever other documents apply in your employment with Lomb and over here are all the documents that apply with Nuplex, and these ones are the same" - sorry, I withdraw that, 'These ones are no less favourable than those ones", and make it absolutely clear. "Your redundancy entitlement is the same, your sick leave entitlement is the same, your accrued annual leave and long service leave entitlement are the same. Your terms and conditions of employment under the agreement are the same. Nothing changes". It would have been very easy.

PN1387

In all of the paper that your Honour sees, filed by the applicant, your Honour sees none of that. Not a thing. It would have been very easy to have done that, and "By the way, yes, Mr Elliott will be working alongside you and you will be in a laboratory and here's the development application that has been approved" and so on and so forth.

PN1388

I did say finally but my friend made a submission about the fact that the remuneration is over the award or over the agreement. It doesn't matter because what your Honour is comparing is the terms of employment that existed before and those that existed after. The salary that Lomb were offering was the same, precisely the same. They offered a 17 and a half per cent annual leave loading. The loading under the agreement is 20 per cent. It's probably de minimus in the scheme of things, and they offered the same sort of superannuation in terms of remuneration. But they also offered all of the things at Nuplex that were in - Nuplex also had in place all of the things in the certified agreement. Lomb didn't offer any of that. It's irrelevant in any assessment of the objective fact of the terms and conditions of employment that one was over the award and the other one could have been under the award. It was the same salary. It's the redundancy condition in particular, and some other conditions, that attract the fact that it was not comparable in terms of the terms and conditions of employment.

PN1389

Those are my submissions.

PN1390

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Chin.

PN1391

MR CHIN: Yes, your Honour, just two matters. Does your Honour have clause 19 of Part V of schedule 9 of the Act?

PN1392

THE SENIOR DEPUTY PRESIDENT: I have the Act here. I'm sure it's in there, yes.

PN1393

MR CHIN: I just wish to refer to it.

PN1394

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1395

MR CHIN: In relation to my learned friend's submissions about the transfer of the collective State agreement, my learned friend is quite wrong in that submission. He points to the application of the agreement to the Seven Hills site as a basis for the submission that it would not have applied at the Riverstone site, despite the operation of the legislation.

PN1396

That submission is incorrect because if your Honour looks at clause 19 the only preconditions to the continuing application of the agreement are that the old employer was bound by the agreement and after the transfer, that the new employer would not be bound by the State transitional instrument in relation to the transferring employees. In those circumstances the new employer is bound by the State transitional instrument, the preserved collective State agreement, by force of this clause.

PN1397

So the operation of that legislation has the effect of applying, of binding Lomb in respect of that preserved collective State agreement, not the terms of the collective State agreement itself. In fact, the transfer is predicated upon the new employer, apart from the operation of this clause, not being bound by that agreement. So that by force of the clause itself the operation of the agreement is transferred to Lomb, not by the terms of the agreement itself. So my learned friend is quite wrong in that submission.

PN1398

For instance, in clause 5 of the agreement, he says it's because the premises isn't located at 8 Abbott Road, Seven Hills it does not apply. But the clause also says that it applies to the company's premises. On my learned friend's construction, the company is Nuplex - - -

PN1399

MR REITANO: .... the company's .....

PN1400

THE SENIOR DEPUTY PRESIDENT: Mr Reitano, stop.

PN1401

MR REITANO: I'm sorry.

PN1402

MR CHIN: The company is Nuplex. On my learned friend's construction, even if Lomb had continued the business at 8 Abbott Road, Seven Hills, it still would not have applied because it's a different company. In my submission that's nonsense.

PN1403

THE SENIOR DEPUTY PRESIDENT: All right.

PN1404

MR CHIN: It's nonsense because of the operation of the plain terms of clause 19. Secondly and lastly, my learned friend is also wrong about the construction of clause 5 of the agreement. The clause must be read with the two sentences consistently and together. The construction that my learned friend tries to put on the second sentence, in my submission, is a tortured interpretation. It doesn't make any sense to substitute the word duration for the word term. What he seeks to do is to suggest that the clause means that the duration of the award shall be incorporated into the duration of the enterprise agreement. It does not make any sense to do that.

PN1405

THE SENIOR DEPUTY PRESIDENT: Why would they have used the word term, singular?

PN1406

MR CHIN: I beg your pardon, your Honour?

PN1407

THE SENIOR DEPUTY PRESIDENT: Why would they have used the word term, singular?

PN1408

MR CHIN: The intention is clear that it refers to the provision - - -

PN1409

THE SENIOR DEPUTY PRESIDENT: When they want to refer to awards, plural, they put an S in.

PN1410

MR CHIN: Yes, your Honour, but in my submission the alternative construction makes no sense because the duration of the award expired in June 2001. The award was not extant at that stage. It makes no sense to say that the effect of that clause is that the duration of the award is incorporated into the duration of the agreement. It just beggars belief that that interpretation would be put upon it.

PN1411

THE SENIOR DEPUTY PRESIDENT: Right.

PN1412

MR CHIN: Partly because the award had no duration. It had expired, and when one reads that sentence in conjunction with the first sentence, it's very clear that the agreement is to be read and interpreted in conjunction with the award because the term of the award, in terms of its provisions, are incorporated into that of the agreement. In my submission it's an untenable construction to put on that provision, to suggest that words should be substituted in terms of the word term for the word duration. It’s a highly untenable construction to suggest that a clause which could have read, "The duration of the award will be extended to the end of the duration of the agreement", something of that nature; it does not say that. It says the term of the award will be incorporated in terms of its provisions.

PN1413

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Chin, what do you say about the level of Mr Bastounas's endeavours? It seems to me ..... he has a view about Mr Brinskele's failure to accept the job, suggesting that it's somehow silly conduct, there's no merit in his decision. But he seems to do very little to resolve Mr Brinskele's doubts and apprehensions. I mean, there's a phone call as I recall it; is there anything else?

PN1414

MR CHIN: Well, your Honour, in part because Mr Lipman on the evidence failed to raise his concerns with Mr Bastounas or Mr Lipman.

PN1415

THE SENIOR DEPUTY PRESIDENT: Mr Lipman? Mr Brinskele.

PN1416

MR CHIN: Mr Brinskele failed to raise any of the concerns that he is raising in these proceedings to Mr Bastounas or Mr Lipman.

PN1417

THE SENIOR DEPUTY PRESIDENT: In that case you say neither of them did much, but it's the applicant's endeavours that you have been referring to here and I don't think that Mr Bastounas's were very active endeavours at that time.

PN1418

MR CHIN: Your Honour, in my submission, on the authorities that I have taken your Honour to, they were sufficient.

PN1419

THE SENIOR DEPUTY PRESIDENT: Sufficient, all right.

PN1420

Now, Mr Reitano - you are finished, aren't you, Mr Chin?

PN1421

MR CHIN: Yes, your Honour.

PN1422

THE SENIOR DEPUTY PRESIDENT: You have been leaping about there; do you want to say anything or do you just want to leap about?

PN1423

MR REITANO: At least by way of keeping fit. Could I raise the point, your Honour, that I don't like being told that I'm totally wrong about something and that's why I leap about. But I should in a measured way put to your Honour - - -

PN1424

THE SENIOR DEPUTY PRESIDENT: You should get used to it. It happens a lot around here.

PN1425

MR REITANO: Yes, well perhaps so.

PN1426

THE SENIOR DEPUTY PRESIDENT: Yes, go on. So just tell me what you want to say.

PN1427

MR REITANO: Perhaps when I have a level of confidence about something, that it disturbs me. Your Honour, clause 19 of the schedule, the transmission clause. There is absolutely no issue between my learned friend and I that if there was a transmission of business in accordance with what the schedule describes - and I think there was - that the agreement transmitted to Lomb. There is no issue about that, but it had no application because the agreement was expressed so that it only applied 0- and my friend is quite unfair to the agreement when he reads it the way it does. The agreement says it applies to the company's premises at Abbott Road, Seven Hills. Now I don't care; if your Honour wants to read company's premises as Lomb's premises, I don’t have a problem. But it only applied at Lomb's premises at Abbott Road, Seven Hills.

PN1428

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1429

MR REITANO: It had no application wider than that. It could not have applied anywhere else. It didn't apply at Riverstone. It could not have applied at Riverstone. So to the extent that there was a transmission of business, it's a distraction because the terms of that agreement did not apply beyond the boundaries of 8 Abbott Road, and that's the submission I make.

PN1430

THE SENIOR DEPUTY PRESIDENT: All right, thank you. I reserve my decision. The Commission is adjourned.

<ADJOURNED INDEFINITELY [12.45PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #BRINSKELE2 RESPONDENT'S WRITTEN SUBMISSIONS PN1329
EXHIBIT #NUPLEX13 APPLICANT'S WRITTEN SUBMISSIONS PN1329