C2014/4887, Transcript of Proceedings [2014] FWCTrans 450 (13 August 2014)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1050375-1

VICE PRESIDENT WATSON
DEPUTY PRESIDENT McCARTHY
COMMISSIONER McKENNA

C2014/4887

s.604 - Appeal of decisions

Tino v Regis Resources Ltd
(C2014/4887)





Perth

2.07PM, WEDNESDAY, 30 JULY 2014

Reserved for Decision

PN1

VICE PRESIDENT WATSON: Can we have the appearances please?

PN2

MR R JONES: If the Commission pleases, Ron Jones. I appear on behalf of Miss Tino.

PN3

VICE PRESIDENT WATSON: Mr Jones, I think we've granted you permission to appear.

PN4

MR JONES: Yes. Thank you.

PN5

VICE PRESIDENT WATSON: And to you, Mr Ellery.

PN6

MR N ELLERY: Yes. If the Commission pleases, Ellery initial N, and I appear on behalf of the respondent, and I understand that similarly permission has already been granted.

PN7

VICE PRESIDENT WATSON: Yes. Thank you.

PN8

Mr Jones?

PN9

MR JONES: Thank you, Mr Deputy President. Could I firstly apologise to the Commission. Last week I emailed through some additional documents which I believe should have been incorporated into the appeal book. I have incorporated those into a new appeal book which has also been folioed, which I'm happy to hand up. A copy of it has already been - - -

PN10

VICE PRESIDENT WATSON: Yes, that's the - - -

PN11

MR JONES: - - - provided to Corrs.

PN12

VICE PRESIDENT WATSON: That's the email of 24 July.

PN13

MR JONES: Yes.

PN14

VICE PRESIDENT WATSON: And the attachments thereto. Thank you. So you'll be referring to the repaginated version?

PN15

MR JONES: Yes, I will. My apologies. I want to address a number of issues relating to the consultation process as being the primary concern in the matter of this appeal. During the course of my submissions I will address the issue of public interest as well as the application of section 389 of the Act, and in particular 389(1)(b).

PN16

We will submit that the consultation process did not take place in accordance with the requirement of the Act and of the Clerks Award, and that the meeting which was held on 16 December, which is at folio 84 in the repaginated version, is a letter that was provided to Miss Tino at the meeting on 16 December wherein she was informed that she was redundant, and there was no opportunity from that letter for any proper consultation in relation to the issue of her redundancy.

PN17

We also say that in fact 389(1)(a) is not substantiated other than by witness statements from Regis Resources, but we rely mainly on the issue of consultation and the absence of proper consultation in accordance with both the provision of 389(1)(b) and the Clerks - Private Sector Award.

PN18

VICE PRESIDENT WATSON: Were the provisions of the Clerks - Private Sector Award put into evidence; are they somewhere in the appeal book?

PN19

MR JONES: No, I don't believe that they were. There was acceptance that the terms and conditions of the employment were covered by that award.

PN20

MR ELLERY: Your Honour, sorry to interrupt. If it's of assistance I do have pages of the relevant clause of the Clerks Award available, if that would be of assistance to your Honour?

PN21

VICE PRESIDENT WATSON: Yes, I think we probably do as well but I was just wondering whether it was in the appeal book.

PN22

MR JONES: Thank you. So we say that that section 8 of the Clerks Award is not met by the provision of the meeting on 16 December, and we note that - and we draw on the decision of the Commissioner at paragraph 43 in his decision where he says:

PN23

Neither the applicant nor the employer submitted that there was any consultation with Miss Tino prior to the decision to abolish the site accounts administrator position.

PN24

He goes on to say:

PN25

I do not consider that the 11.45 am meeting on 16 December 2013 was for the purpose of consultation but to advise Miss Tino of the decision that her position had been abolished, to give her notice, and that there was no suitable alternative positions available.

PN26

I note that no reference to the no positions available is covered in the letter that was given to her on 16 December. There he goes on and talks about safety issues and then at 47 the Commissioner says:

PN27

I am satisfied that in these somewhat difficult circumstances the employer in broad terms complied with the provisions of paragraphs 389(1)(b) of the Fair Work Act.

PN28

We say that that's that at odds with paragraph 43 which is, on any kind of acceptance of the process that applied to Miss Tino, apparently the first practicable opportunity that Regis, as the employer, had to meet with Miss Tino. There was evidence that in fact the decision to abolish the position was taken on or around 11 December and Regis argued that the first practicable period or time for the meeting was at that 11.45 meeting on 16 December. If that is the case then we say that's not a consultation. That is not a consultation that meets the requirements of 389(1)(b) or of the Clerks - Private Sector Award.

PN29

VICE PRESIDENT WATSON: Putting to one side that question for a moment and getting back to what you say is a conflict between paragraphs 43 and 44 and the conclusion at 47, might it be that the Commissioner was referring to the initial decision, called in the clause a definite decision, that was made, but it's definite in a sense that it's not necessarily the final decision? So in order to trigger consultation there needs to be a decision.

PN30

Might the Commissioner have been talking about that decision in paragraphs 43 and 44, and read in that way it might not be in conflict with the ultimate conclusion? It still raises the issue as to whether consultation as required by the clause, or I should say discussions I think is the word used in the clause, whether that occurred. But as to the inconsistency point might that be an explanation?

PN31

MR JONES: That may be, but we say that in fact the wording of the letter provided on 16 December is fairly clear. There is no opportunity for it to be considered other than the fact that she's terminated as a result of the redundancy. So there was no discussion about, or no opportunity for Miss Tino to have any discussions about mitigation or other alternatives that might have been possible, or to influence the decision.

PN32

And I will take you to a number of references where the question of consultation under that provision of the - in the awards goes to that very question about what is the purpose of consultation. Otherwise it makes a nonsense of the notion of consultation if in fact the decision is taken and it's irrevocable, but that's also argued that that's consultation. And there was no opportunity for consultation as we understand it in the application of previous cases that have been before the Commission and decided by Full Benches, and the application of that in the process that was provided to Miss Tino.

PN33

VICE PRESIDENT WATSON: So as far as this ground of appeal is concerned you are saying that as a matter of fact the first meeting that occurred was on the 16th; the nature of the representation was in accordance with the letter and on the basis of that, and in the absence of any other opportunity for discussion and consultation prior to any final decision, that the Commissioner's conclusion that the consultation obligation had been complied with was wrong?

PN34

MR JONES: Yes, and we actually say that there was no suggestion of any subsequent meetings being to change that decision. Subsequent meetings were about signing a termination deed or a separation deed, and the wording of that letter of 16 December, which is reiterated in subsequent wording of letters dated I think 20 December or 24 December is precisely the same. In other words that was the decision.

PN35

The company had made its mind up this position was redundant. There was no opportunity for any redress with respect to her position and her role. So we say that it doesn't comply with any of the requirements under 389(1)(b), which refers to a provision in an award. The Clerks Award applies to the position and the clause 8 in the Clerks Award was not complied with by the company in its meeting or in its correspondence of 16 December. If the Commission pleases, I propose to take you to a number of cases.

PN36

DEPUTY PRESIDENT McCARTHY: Is there any evidence of any matters that were raised by - - -

PN37

MR JONES: There would be differences with respect to each party's recollection, I would guess, of the discussions that took place in those meetings. I don't know that there were any notes. Miss Tino certainly was not given an opportunity to have a representative with her at that meeting, although there were I think two representatives - - -

PN38

DEPUTY PRESIDENT McCARTHY: Well the reason I raise it, Mr Jones, is 8(b)(i) of the award requires prompt consideration to matters raised. Is there any evidence of matters raised?

PN39

MR JONES: No. Can I take you to - sorry, I'll hand up a set of authorities. I believe in my original application I may have listed a large number of authorities. I've pruned that back to about 10 and I do propose to take you to - - -

PN40

VICE PRESIDENT WATSON: Thank you for that.

PN41

MR JONES: - - - certain paragraphs in a number of those decisions to support the position that I'm arguing. These are only in alphabetical order so they don't necessarily reflect kind of dates of decisions. So they're effectively in order of the applicant. So the first one is that of Barwick v Jewish Care and at paragraph 48, which follows a discussion in respect of consultation, and the Commissioner in this decision noted the words of Watson VP in the Escada case, that:

PN42

The requirement to discuss proposed changes and consult about the changes has been held to require meaningful consultation and not merely an afterthought. Consultation after an irrevocable decision has been made has been held to not amount to meaningful consultation.

PN43

We say that that discussion on 16 December was in fact not meaningful. It was an afterthought. The decision had been taken and therefore it wasn't meaningful. At paragraph 50 of that decision the Commissioner says:

PN44

It follows that the applicant's termination was therefore not a genuine redundancy as defined in the Act and that the application cannot be dismissed on that basis.

PN45

Section 389 requires that it's not just one part of it that gives effect to genuine redundancy. You need to meet all of the parts for it to be a genuine redundancy, so if it fails on one part it must follow that it's not a genuine redundancy. In the case of tab 2 in the list of authorities, Everard v Coppiford at paragraphs 36 to 41:

PN46

It is accepted that a definite decision was made some time between the end of June and the 10th of July 2013 and that the applicant was notified at the dismissal meeting on the 18th of July 2013. There were no other meetings or consultations with the applicant.

PN47

It goes on and says:

PN48

I prefer the evidence of Mr Baker on this point. However even if I accept the evidence of Mr Hoffman, the delay between the 10th of July and the 18th of July means I am satisfied that discussions did not commence as early as practicable after a definite decision was made.

PN49

So it's a question of dates. We say that what's relevant in this case is that the definite decision was taken on or around 11 December and the meeting was actually scheduled for 16 December. Paragraph 37 of Everard:

PN50

The applicant had no reasonable opportunity to consider the proposed change and to suggest alternatives and to have those alternatives considered.

PN51

Paragraph 38:

PN52

It is well established that the obligation to consult is an obligation to consult before an irrevocable decision has been made and one where there is a genuine opportunity to influence and potentially change the mind of the decision maker. No such was provided in this case.

PN53

We say no such was opportunity was provided to Miss Tino. He then goes on and says:

PN54

I am satisfied that the respondent failed to meet its obligations to consult under the award.

PN55

At paragraph 48 he says:

PN56

The termination of the applicant was not a genuine redundancy because there was a requirement to consult about the redundancy pursuant to the award and this was not complied with. If that consultation requirement had been met it is possible that the discussion between the parties might have led to alternative solutions. It is possible that the redundancy might have been avoided because the parties agreed upon a productive way for the job to continue without the need for the redundancy.

PN57

At 52 he says:

PN58

In my view a failure to consult is not simply an issue of procedural fairness. If the termination is a genuine redundancy there cannot be an unfair dismissal. Therefore the issue of whether or not there was a genuine redundancy is central to the fairness or otherwise of termination where the employer claims that the dismissal has been for reasons of genuine redundancy.

PN59

And we say that did not apply in Miss Tino's case. In a case of Grimshaw, which was before Senior Deputy President O'Callaghan, he talks about genuine redundancy at paragraph 22:\

PN60

There are three key elements to a finding of genuine redundancy pursuant to section 389.

PN61

He makes reference to the Ulan Coal case and goes on at paragraph 54 - sorry, at 45:

PN62

Consequently in terms of section 389(1) because both of the requirements of this subsection have not been met and despite being satisfied that the termination of Mr Grimshaw's employment was a redundancy, I am not satisfied that it met the more comprehensive definition of a genuine redundancy.

PN63

And at 54:

PN64

I have concluded that the termination of Mr Grimshaw's employment cannot be regarded as a genuine redundancy because the consultation obligations in the relevant modern award were not followed. Consequently, because I have found that Mr Grimshaw's dismissal was not a case of genuine redundancy he is not excluded from being able to pursue his unfair dismissal application.

PN65

In Margolina v Jenny Craig, which was also - went on appeal where I believe the significant issue was in respect of redeployment. At paragraph 7 the Commissioner says:

PN66

The requirement in section 389(1)(b) can only be considered after two questions have been answered. The first, is there a modern award or enterprise agreement that applies the applicant's employment?

PN67

And at nine:

PN68

The second question is if yes, does the modern award or enterprise agreement contain any requirement for the respondent to consult with the applicant about the redundancy?

PN69

Further on he talks - he refers to the consultation provision in the Clerks Award and at paragraph 16:

PN70

The evidence of both Ms Senior and Ms Cervi is that the applicant was called into a meeting on 21 March 2011 and advised that her job was redundant and that she was dismissed. As the meeting took place away from the applicant’s normal place of work the applicant was not permitted to return to her place of work after the meeting. The dismissal was effective immediately the applicant was informed. There is nothing in the evidence…to suggest that the applicant had any prior knowledge of the intention of the respondent to declare the applicant’s job redundant and to dismiss her immediately.

PN71

Paragraph 17:

PN72

It is clear that the requirements of clause 8 of the Clerks Award which required the respondent to consult with the applicant were not complied with by the respondent. I find that contrary to the requirements of section 389(1)(b) the respondent did not comply with the obligation in clause 8 of the Clerks Award that applied to the employment of the applicant to consult about the redundancy.

PN73

And at paragraph 18 says:

PN74

Compliance with section 389(1)(b) is an essential step if a redundancy is to be considered to be a “genuine redundancy” within the meaning of section 389(1). Non-compliance with section 389(1)(b) means that the redundancy was not a “genuine redundancy”.

PN75

The decision goes on at paragraphs 44 and 45. At 44:

PN76

The applicant’s dismissal by the respondent is not a case of genuine redundancy within the meaning of section 389 of the Act.

PN77

And talks about it then being referred for consideration on its merits. Deputy President Hamilton considered the matter of Marshall v UBS and he does refer to the Ulan Coal case at paragraph 49, and I use this decision only in respect of clause 50:

PN78

Consultation about a redundancy is well established as an important means of improving decision making about the redundancy, and for providing employees and others with an opportunity to put a case…This has now been given statutory force in the form of section 389.

PN79

In the case of Meagher v Bundaberg and District RSL and Citizens Memorial Club, a decision by Commissioner Simpson, at paragraphs 64 the Commissioner says:

PN80

Finally, the third issue was in relation to section 389(1)(b) and the applicant not being consulted in accordance with the requirements of the Registered and Licensed Clubs Award 2010. .

PN81

There was an agreement about whether or not it constituted major change and he was satisfied that the extent of the changes were major. At 67:

PN82

Clause 8.2 of the Award required the respondent to discuss with the applicant the change…

PN83

He goes on and talks about:

PN84

In this case the evidence is that the applicant was called to a meeting on the morning of his termination, informed of the decision, advised in a brief discussion that he was to be made redundant immediately and dismissed. The applicant was not offered re-deployment in the organisation and claims he was not offered any reasons for not being redeployed.

PN85

At paragraph 72 the Commissioner says:

PN86

I also do not believe that whatever discussion did occur in the brief meeting involving the applicant on the morning of 8 June 2011 constituted meaningful discussion. The process was already at an end and a decision was made. There was no evidence of genuine discussion to mitigate the adverse effects of the decision or provide relevant material in writing such as the nature of the restructure. There was some evidence that the applicant had discussions with Mr Drinkwater before he left to go on his honeymoon, but that discussion was in relation to the food menu, not the introduction of changes and their adverse impact on him. I am satisfied that what occurred at the meeting on the morning of 8 June 2011 does not satisfy the requirements of section 389(1)(b). On that basis I find the dismissal of the applicant was not a genuine redundancy as defined in section 389.

PN87

VICE PRESIDENT WATSON: Do these cases add anything other than the application of the provisions?

PN88

MR JONES: Well my point, Deputy President, is that a number of decisions have quite clearly established what constitutes consultation. That it is about the opportunity to influence the decision. That it is about meaningful consultation and that those elements were not present in the discussions with Miss Tino on 16 December, and that on that basis section 389(1)(b) was not complied with and therefore it cannot be held to be a genuine redundancy.

PN89

VICE PRESIDENT WATSON: Well, you said there was a Full Bench authority. Is that the one - tab 8?

PN90

MR JONES: In the Roy Morgan Research - - -

PN91

VICE PRESIDENT WATSON: Yes, I think - and then you're referring to paragraphs 31 and following of that decision, are you?

PN92

MR JONES: Yes.

PN93

VICE PRESIDENT WATSON: I think there is another Full Bench decision, an earlier case, that actually explains what is the requirement of that consultation obligation, but I don't see it in your book, and I think it might have been referred to and relied upon by me in the decisions that are referred to at paragraph 35. But you don't have those decisions.

PN94

MR JONES: No.

PN95

VICE PRESIDENT WATSON: I think it was the coal industry, perhaps Ulan Mines as well, but an earlier decision.

PN96

MR JONES: Sorry, I'm not familiar with the particular decision. If I could turn to the Roy Morgan decision which does refer to appeals and refers to Ulan Coal and does refer to - at paragraph 10 in citing the Ulan Coal decision at 23 does talk about error in process and mistakes of facts as kind of elements constituting public interest.

PN97

We say that in this context there is that level of error the Commissioner's decision in his treatment of the meeting of 16 December, where he accepts that it wasn't a consultation meeting and then goes on and makes claim or statement that then confirms - that he uses to confirm the decision, which is to say that Regis generally or broadly complied with the consultation requirements. We say that that is not a conclusion that can be drawn from the events of 16 December. The Roy Morgan Research decision goes on at paragraphs 33 and talks about:

PN98

The respondent submitted that relevant case law establishes that the discussions envisaged in the consultation term of the agreement are to take place before the number of terminations is finalised…

PN99

It goes on:

PN100

The respondent submitted that in K Monks v John Holland Group Pty Ltd, it was found that by the time the consultation meeting occurred, a definite decision to make the relevant employee’s position redundant had been made…

PN101

And we say that that's circumstance that occurred with Miss Tino, that in fact a decision had been made and there was no opportunity to reconsider that decision and no opportunity was given to Miss Tino for her to offer any alternatives in terms of mitigation, as required by the provisions of clause 8 in the Clerks - Private Sector Award. The two other decisions that I have - - -

PN102

DEPUTY PRESIDENT McCARTHY: I'm a little confused, Mr Jones. Are you saying that the discussion required is a discussion about the position not being made redundant at all; or the consequences of that decision in the effect that it has on the employee and the probable dismissal of the employee?

PN103

MR JONES: I think - - -

PN104

DEPUTY PRESIDENT McCARTHY: There are two different decisions, aren't there?

PN105

MR JONES: - - - that sort of - I accept that and there was - what we say is there was no opportunity for a discussion about the consideration of the alternatives.

PN106

DEPUTY PRESIDENT McCARTHY: So you're not suggesting that the discussion is about the decision - - -

PN107

MR JONES: No.

PN108

DEPUTY PRESIDENT McCARTHY: - - - that the position be redundant? Because that's the way I keep - - -

PN109

MR JONES: That may - - -

PN110

DEPUTY PRESIDENT McCARTHY: - - - that I hear you.

PN111

MR JONES: That may well be a separate argument in relation to clause 389(1)(a), but in relation to (1)(b) it is about the consultation as to what happens as a consequence of that, and therefore there may well be other - - -

PN112

DEPUTY PRESIDENT McCARTHY: And what was the evidence about all that?

PN113

MR JONES: Only what was presented in written witness statements. So there was no evidence in terms of any review documentation, any report that had been produced. It was simply a discussion as I - well, there were witness statements about what took place and the Commissioner made his decision based on his reading of that. And we say that the decision of the Commissioner, to the extent of which he accepts that that first meeting was not a consultation meeting, must mean that there was no early consultation meeting as soon as practicable, as required under the Act and under the Clerks Award, and therefore can't
conclude - - -

PN114

DEPUTY PRESIDENT McCARTHY: You keep using the word consultation. As I see it, the Act specifies consultation but in the form specified in the award.

PN115

MR JONES: Yes.

PN116

DEPUTY PRESIDENT McCARTHY: The award requires discussion.

PN117

MR JONES: Yes.

PN118

DEPUTY PRESIDENT McCARTHY: After the decision has been made that the position goes. Discussion about mitigation and opportunity to consider what the employee might put forward.

PN119

MR JONES: Yes. Yes, I - - -

PN120

DEPUTY PRESIDENT McCARTHY: Which could be a range of things.

PN121

MR JONES: It could be a range of things. We say that the correspondence provided to Miss Tino on 16 December was a decision - was a definite decision that did not invite the possibility of any alternatives being discussed, and that's the purpose of consultation. The decisions that I've taken you to - - -

PN122

DEPUTY PRESIDENT McCARTHY: Discussion.

PN123

MR JONES: Well, the Act uses - and the clause uses the word - - -

PN124

DEPUTY PRESIDENT McCARTHY: That's my point, Mr Jones.

PN125

MR JONES: - - - consultation.

PN126

DEPUTY PRESIDENT McCARTHY: The Act says discussion - "Consultation in the form provided in the award" and the award provides for discussion.

PN127

MR JONES: Yes, that's right.

PN128

DEPUTY PRESIDENT McCARTHY: So it's discussion.

PN129

MR JONES: Yes. Well, then there's an issue about what does discussion then mean in a modern award - - -

PN130

DEPUTY PRESIDENT McCARTHY: Yes, that's - - -

PN131

MR JONES: - - - in the context of the Act referring to consultation.

PN132

DEPUTY PRESIDENT McCARTHY: Yes.

PN133

MR JONES: And that would be - and that's one of the issues that I have put forward as being a public interest issue, which is what is the intersection then between a discussion under the award and a consultation requirement under the Act.

PN134

DEPUTY PRESIDENT McCARTHY: Well the consultation requirement - my point to you is the consultation requirement appears to be what's provided for in the award, being discussing the effects.

PN135

MR JONES: And alternatives, and the opportunity to influence - - -

PN136

DEPUTY PRESIDENT McCARTHY: That's right.

PN137

MR JONES: - - - and provide for mitigation.

PN138

DEPUTY PRESIDENT McCARTHY: That's correct.

PN139

MR JONES: So we say - - -

PN140

DEPUTY PRESIDENT McCARTHY: I think we're in fierce agreement.

PN141

MR JONES: Yes, we are. Thank you. If the Commission pleases, I have nothing further.

PN142

VICE PRESIDENT WATSON: I think the earlier decision I referred to, the Full Bench decision, is reported at (1998) 88 IR 202.

PN143

MR JONES: Thank you.

PN144

VICE PRESIDENT WATSON: Mr Jones, we might mark the outline of submissions that you've filed in this matter exhibit J1 in these proceedings.

EXHIBIT #J1 APPELLANT'S WRITTEN OUTLINE OF SUBMISSIONS

PN145

DEPUTY PRESIDENT McCARTHY: So just before - sorry, Mr Jones. So what was put to Commissioner Cloghan was a view that there was no discussion, and another view that there was.

PN146

MR JONES: Yes.

PN147

VICE PRESIDENT WATSON: And the findings he made are recorded at paragraphs 43 to 47 in relation to that element.

PN148

MR JONES: Sorry?

PN149

VICE PRESIDENT WATSON: In relation to that element of the definition of genuine redundancy.

PN150

MR JONES: Yes. Yes.

PN151

VICE PRESIDENT WATSON: Mr Ellery?

PN152

MR ELLERY: Thank you, your Honour. Your Honour, just as a preliminary matter I note that you've marked the appellant's submissions as J1. So we filed a written outline of submissions, as you would be aware, on 24 July. Could I ask that they be marked as an exhibit also?

PN153

VICE PRESIDENT WATSON: Yes, they will be exhibit E1.

EXHIBIT #E1 RESPONDENT'S WRITTEN OUTLINE OF SUBMISSIONS

PN154

MR ELLERY: Thank you, your Honour. Your Honour, I intend to address some the issues raised by Mr Jones directly and I also intend, unless I'm guided otherwise by yourself or other members of the Bench, to address the other issues that are dealt with in our written outline of submissions. The other observations I'd make, which I think are quite important and cover some issues which weren't addressed by Mr Jones just now, but I think need to be addressed, I would largely repeat what's in my written outline of submissions.

PN155

But I'm just observing that so if your Honour or the other members of the Bench tell me for example you don't need to hear from me on a particular issue, then I don't wish to waste anybody's time. So unless I'm given a steer otherwise, I'm just going to launch into and you can tell me if you want me to leave some issues alone.

PN156

VICE PRESIDENT WATSON: Yes.

PN157

MR ELLERY: I will come back to the sequence of events which I think are important and I will take your Honours or the members of the Bench to the sequence of events. But before I get to that we need to deal with what we say are some fundamental preliminary jurisdictional or threshold issues, and those are simply the issues raised by section 400 of the Act which has not been directly addressed at all, I would suggest.

PN158

The Commission will be well familiar with those provisions. Those provisions were inserted to impose a different and a higher test on appeals from decisions of this particular nature, and so appeals need to address and satisfy those thresholds provided by section 400. Section 400(1) provides that the Commission must not grant permission to appeal from a decision of this type unless the Commission considers it is in the public interest to do so. So there's a stronger public interest test that has been imposed by section 400(1) than arises in relation to other Full Bench appeals.

PN159

And the second issue is that if the appeal is in relation to a matter of fact or a question of fact, the appeal can only be made on the grounds that there was a significant error of fact. And we say, if I can deal with that error of fact issue firstly, it does seem to us that largely the submissions put by Mr Jones are that the Commissioner got it wrong at first instance on a factual basis; that he misread or misunderstood or misapplied the facts.

PN160

We would accept that there were differing factual conclusions that the Commissioner could have come to than the ones that he did come to. But we say none of that shows a significant error, and we say it certainly is the case that it was open and logical and appropriate for him to reach the factual conclusions that he did reach. There was evidence before him to support each of those conclusions and therefore we say that the threshold in section 400(2) is not met.

PN161

Perhaps if I can put that to one side, if I may, and I'll deal with the first issue of section 400 which is the public interest issue. We say simply that the principles regarding this particular issue of unfair dismissal and the question of redundancy and a genuine redundancy have been thoroughly and well canvassed in a range of decisions of the Full Bench of this Commission, as well as single member decisions. We've referred to a number of those in our written outline of submissions and I don't propose to take you to the detail of those.

PN162

But we simply say, you know, these issues have been well ventilated, are well understood, and really what remains for the Commission in these cases is to apply those well settled principles to the particular facts of the case, and we say that's all that Commissioner Cloghan did in this case. He didn't embark on some new principle or apply or seek to interpret the provisions of the Act in different or in a radical way from what has been previously done. He simply applied them to the particular facts of this case and reached the conclusions that he did. There's nothing novel in the exercise of - - -

PN163

VICE PRESIDENT WATSON: As to the process adopted in relation to this matter where there was a hearing on the papers, there was no hearing - it was a determination of the matter based on written material filed by the parties, is section 397 of the Act of any relevance?

PN164

MR ELLERY: Yes, that's right, it is your Honour, and if I can address that and if you could just give me one moment, and it's important to put this in sequence. The Commissioner issued written directions in this matter which appear at page 17. Yes, it's pages 17 and 18 of the appeal book and to broadly summarise them, the Commissioner noted that there already had been a conciliation conference at which matters had not been resolved.

PN165

He then requires the employer - because the employer raised the jurisdictional objection. He requires the employer to file various written statements and other documents, which was done. He requires the applicant to do the same by a certain date and then critically at paragraph 9 of his directions he says:

PN166

Should either party wish to make any supplementary oral submissions or wish to challenge the submissions by oral evidence they are required to notify my associate by -

PN167

A certain time. So we say the Commissioner did not at the outset embark on a course of saying, "This is only going to be decided on the papers". He required written material to be filed but he also invited the parties to notify if they wished to have a hearing and wished to challenge the submissions by oral evidence, which could have obviously taken a form of Mr Jones calling his client or other parties to give direct evidence; or Mr Jones seeking to cross-examine the deponents to the written witness statements which were filed, or to make other submissions that he wished to make.

PN168

So Commissioner Cloghan did not launch into purely a written process. And then the position was that the associate made enquiries of both parties as to whether or not they wished for the oral hearing to take place, and both parties including Mr Jones advised that they did not seek a hearing. And if you look at page 54 of the appeal book that particular exchange appears. So 54 is the final email in the chain of emails and that's the email from Mr Jones to the associate, copied to Corrs, advising in response to the associate:

PN169

We believe the issues relating to the question of genuine redundancy are as set out on the papers -

PN170

et cetera. So the parties were invited to and reminded of their opportunity to have an oral hearing and to lead evidence, cross-examine et cetera, and both parties declined that opportunity, including the applicant who's now the appellant. So we say it's not a case that the appellant can say they were denied the opportunity. They were given the opportunity but they chose not to take it up.

PN171

VICE PRESIDENT WATSON: But is an opportunity to have a - to lead further oral evidence or make further submissions in compliance with section 397? That's putting aside the question of whether there were contested facts or contested conclusions in relation to established facts as that's a separate question.

PN172

MR ELLERY: Yes. Yes I accept that, your Honour. Well, we say that 397 has been complied with. 397 requires the Commission to conduct a conference or hold a hearing. A conference was conducted, as is noted in those directions, and then the rest of 397 says:

PN173

…conduct a conference or hold a hearing if and to the extent that the matter involves facts the existence of which is in dispute.

PN174

And we say given the exchange of emails between the Commissioner's associate and the parties, including Mr Jones for the appellant, it was open and proper for the Commissioner to conclude that there were no facts in dispute. There were written statements filed. Some statements dealt with issues that were not covered by the other party's statements but there was no - - -

PN175

VICE PRESIDENT WATSON: But where is the - who conducted the conference?

PN176

MR ELLERY: That was a conciliator of the Commission, your Honour, Mr Robinson, not the Commissioner.

PN177

VICE PRESIDENT WATSON: But are conciliators the Commission?

PN178

MR ELLERY: Well, we'd say they are in this context, your Honour, yes.

PN179

VICE PRESIDENT WATSON: Doesn't the Act indicate who the Commission is?

PN180

MR ELLERY: Yes it does, your Honour. But our submission is that the conciliator authorised and appointed by the Commission to conduct a conference is the Commission in that context.

PN181

VICE PRESIDENT WATSON: It says, "The FWC must conduct a conference" and the FWC are the members of the Commission.

PN182

MR ELLERY: Well, your Honour, Mr Robinson is not a member in that sense. He's an officer or an employee of the Commission. He's not a member.

PN183

COMMISSIONER McKENNA: Mr Ellery, there are some usual presumptions that apply if a person who has prepared a witness statement isn't, for example, required for cross-examination. But here it seems to be the case that an invitation, as it were, was relayed through the Commissioner's associate and neither party's representative then determined to require any of the deponents for oral evidence or cross-examination.

PN184

might it be the case in those circumstances, because of course it's not - it wouldn't be a matter for the Commissioner to determine who should be called for cross-examination absent any issuing of appropriate process on the application by the party, would it simply be a case that some usual presumptions might apply and that the Commissioner was left to deal with it as best he could with what was before him on the papers?

PN185

MR ELLERY: Well, we say the usual presumptions would be that if a party has received a witness statement from the opponent and has an opportunity to but chooses not to cross-examine on that, that they accept at face value that statement. And in this case the Commissioner didn't merely allow any - the direction that was issued was if the parties wish for a hearing they will notify the associate, and both parties notified that they did not seek to do that.

PN186

So we say in that sense the Commissioner was entitled to reach the conclusion that there was no dispute about any relevant facts. Perhaps coming back to your Honour's earlier question, if I fail on the observation that you've made about who the Commission is, as I've already said the two limbs of section 397 are that the Commission must hold:

PN187

…a conference or hold a hearing if and to the extent that the matter involves facts the existence of which is in dispute.

PN188

And to put all this in context for the members of the Full Bench, obviously it's the nature of this jurisdiction and it's a requirement of the Act that matters of this nature are dealt with in a relatively expeditious way, without requiring for example a full blown hearing over every contested jurisdictional point. It's the case in unfair dismissal matters that some jurisdictional points can be fairly neatly and quickly resolved satisfactorily.

PN189

The Commission is required to exercise its powers with those things in mind and we say Commissioner Cloghan issued directions to that end. He balanced the benefit of having an expedient and an efficient process, which is filing written statements and the like, against the natural justice issue of allowing either party if they wanted to, to test by cross-examination or provide further oral evidence to deal with those issue. But the appellant did not seek to do so even though they were invited to by the directions and reminded of that opportunity.

PN190

VICE PRESIDENT WATSON: Well, I can understand an argument that the contested facts might be only one part of the controversy, and the obligation in section 397 would appear to only require a hearing or a conference in relation to the contested facts. The section of the Act that defines Commission that I was thinking of is section 575. I'm not aware that a power such as that, a requirement of the Commission to hold a conference or a hearing can be delegated or that a preliminary process of conciliation is in conformity with the obvious intent of that section, that findings of fact where they're contested should emanate from a conference or a hearing, not through some other means.

PN191

It may be that there's no real significance in the matter, given the opportunities to cross-examine that were not taken up. I can understand that argument. I can understand an argument as to the definition of what were contested facts and what were disputed legal conclusions based on facts that were not really in dispute. But for my part I'm not clear as to how you do say that section 397 was complied with, given its terms.

PN192

MR ELLERY: Yes, I understand your observations, your Honour. Well, I've made my observation about 397 in isolation, but we also say that you need to read it with section 399, which says:

PN193

The Commission must not hold a hearing in relation to a matter unless the Commission considers it appropriate to do so, taking into account the views of the parties to the matter and whether a hearing would be the most effective and efficient way to resolve the matter.

PN194

Which - - -

PN195

VICE PRESIDENT WATSON: Yes, that's in the context of 398. So section 398 and 399 are legislative encouragement for matters to be determined by way of conferences rather than hearings because there's a barrier for hearings in the section you've just referred to.

PN196

MR ELLERY: Well, we say with respect, your Honour, you need to read 399 with 397. as I've already indicated, the second limb of 397 is that they "must hold a hearing to the extent that the matter involves facts the existence of which is in dispute" and that 399 adds further emphasis to that decision-making process by saying that you don't hold a hearing unless you think it's appropriate to do so, taking into account those circumstances.

PN197

And obviously in this case the parties expressed a view there was no need for a hearing, which itself is not determinative but it's a relevant factor. And the second limb is, you know, whether the hearing would be the most effective and efficient way to resolve the matter. I'm not sure if there's much more that I can take you to on that particular limb, your Honour. But going back to my earlier submission to the Full Bench, section 400 provides two gates here, we say neither of which have been passed or satisfied.

PN198

There are a myriad of cases exploring the meaning of genuine redundancy. My friend has taken you to some of them. We've referred to some in our written outline of submissions. We say this case doesn't illustrate some radical new dimension or point of principle that needs to be explored or settled. All that happened here was the Commissioner had a particular set of facts presented to him by way of the written evidence and he applied those principles to the evidence as he saw it and made the decisions he made.

PN199

VICE PRESIDENT WATSON: As I understand Mr Jones's case it is that the Commissioner did not apply the established approach or the requirements regarding consultation and discussion as was a requirement for a finding that there was a genuine redundancy based on established authorities. And a departure from those established authorities and that the requirements for consultation, for discussions under clause 8.1(b) of the Clerks - Private Sector Award is a matter that attracts the public interest. That's as I understand the case that he puts.

PN200

MR ELLERY: Yes, your Honour. Well perhaps if I can deal with those factual issues, but before I do that let me say that the way we understand the argument of the appellant is that, "These are the principles and the Commissioner got it wrong when applying the principles to these facts. These facts don't support the findings that he made". That's the essence of the argument as we understand it. It's not that we're debating the notion of principles.

PN201

VICE PRESIDENT WATSON: Does that dovetail back to what we were talking about before; was it a finding of fact or was it a drawing of a legal conclusion in relation to established facts?

PN202

MR ELLERY: Well I mean our case is that the facts were not in dispute. The parties were invited to, but chose not to, seek cross-examination and the like, and the Commissioner was presented with a set of facts. Some of the respondent's materials dealt with issues not covered by the applicant and vice versa, and the Commissioner was left to deal with that in the most efficient way that he thought appropriate.

PN203

VICE PRESIDENT WATSON: So the facts were not in dispute. The parties made submissions as to the legal consequences of that - - -

PN204

MR ELLERY: Yes.

PN205

THE VICE PRESIDENT: - - - in relation to the relevant clause. So it was accepted that it was that clause that did impose the obligation.

PN206

MR ELLERY: Yes.

PN207

VICE PRESIDENT WATSON: So it was a legal conclusion, and Mr Jones says that that legal conclusion was not consistent with the approach to that obligation in other cases. So it's not an error of fact, significant or otherwise. It's an error of law, he puts it, as to the application or the interpretation and application of the requirements of the standard consultation clause.

PN208

MR ELLERY: Well, I accept your Honour's point. We don't concede that that's the proper characterisation of it and I don't - I think that we could be debating this in a circular fashion for some time if we needed to. But we say he wasn't - the Commissioner didn't make a legal conclusion as to "This is what consultation means" or "This is how you apply or read clause 8 of the Clerks Award". He simply said, "Here's the clause. Here are the facts. I've applied the facts to the clause and I'm satisfied" as he puts it in his decision - he says that, "I'm satisfied that in the" - this is at paragraph 47 which appears at appeal book page 15:

PN209

I am satisfied that in these somewhat difficult circumstances the employer in broad terms complied with the provisions…

PN210

So that's the essence of the conclusion that we're disputing here. Perhaps at that point if I can briefly take members of the Bench to the evidence about the discussion and the consultation that took place, which we say support the findings that the Commissioner made at first instance. And we say at the outset that, look, we accept that this is a case where you could take different factual conclusions from the evidence that was presented. That's not the test.

PN211

The test is was there a significant error and we say it's clearly logical, fair and reasonable for the Commissioner to have reached the conclusions he made, and it's not enough to say that a different member of the Commission may have reached a different conclusion. It's far higher than that. It's was there a significant error, and we say that there could not have been, given that there were facts to support each of the conclusions that were reached.

PN212

So I'll briefly summarise, if I may, how we see the sequence of events that developed and then I'll take your Honours and members of the Bench to the particular references in the appeal book where the evidence was described. But it's common ground I think that there was a decision made on or about 11 December to abolish the position and there was a meeting with the applicant on 16 December to discuss that.

PN213

And we say that clearly satisfies the test of as soon as reasonably practicable under the clause because the evidence is that the applicant was not onsite until the 16th, so we say there's nothing - the delay from the 11th to the 16th is no - there can be no suggestion that that's a significant delay or that the decision wasn't discussed as soon as practicable. There were two meetings with the applicant on 16 December and they are described in the evidence which I'll take you to. At those meetings, particularly the first one, the issues of potential redeployment were discussed, and I'll take you to this in a moment.

PN214

But as an overarching observation can I say it cannot be - and I would urge on the Full Bench not to find that you should have discussion for the sake of having discussion. You should have discussion where there's something meaningful to discuss and if, for example, as is the evidence here, the respondent, the employer has carefully considered whether there are any other jobs that could be available as redeployment and has reached the conclusion that there are none, then what more can the employer do in terms of discussing redeployment options, that there's nothing to discuss.

PN215

In the sequence of discussions that took place on 16 December and following, the applicant raised the possibility of redeployment and that was discussed and it was communicated that there was not an option for the reasons outlined. So we say there was a genuine discussion and it satisfies the criteria of the award at clause 8.1(b)(i), and I'll come back to that in a moment if I may. But the sequence of events was that there are two meetings on 16 December, there's a second meeting of 20 December in the Perth office.

PN216

So the first meeting on the 16th took place at the site, which is in the inland Western Australia. There's a second - a third meeting, rather, on 20 December in the Perth office of the company. The applicant sends an email on 18 December, so in between those third and second meetings, raising various issues including the possibility of redeployment, and that is responded to in the meeting of 20 December that I've referred to. You've already been taken to a letter that was issued on 16 December by the company.

PN217

There were two more letters before the final decision was confirmed and communicated on the 20th and 24th December from the company to the applicant. So the presentation that Mr Jones puts on it is there was a meeting and that was it. There was one meeting where the applicant is told, "This is the end of it" and there's no other discussion. Well, what actually happened was there was a series of meetings, a series of written exchanges, and the end result we know.

PN218

But that puts a very different gloss on it, we say, than the presentation which says there was one meeting and that was it. There was actually a series of meetings and the employment did not come to an end until 31 December. So that, we say, goes a long way to satisfying those requirements of the clause. So just very briefly taking you to the detail of those meetings, and here I'm going to refer to witness statements which are in the appeal book which were filed at first instance.

PN219

We've already discussed the issue that they weren't subject to cross-examination obviously, and I've made my submissions on that. But at page 41 of the appeal book that is part of the witness statement of Mr Wyatt, which was filed and Mr Wyatt is the registered manager for the Garden Well Mine. And at paragraph - so page 41 of the appeal book at paragraph 21 he recounts that he said to Miss Tino words to the effect of:

PN220

We want to talk to you about your position. There has been an internal review of the work structure and unfortunately there is no longer a position for you in your current role. Please note that this decision wasn't made on a whim. We have gone through a long process.

PN221

And at the next paragraph he says:

PN222

I also recall that we discussed redeployment during the meeting, using words to the effect of -

PN223

And then he recounts the words that were used, which were that, "We've looked at it but there aren't any alternatives at the moment", and that's the discussion that takes place on that first occasion. There's then another meeting that takes place that day and this is recounted at page 37 of the appeal book, which is in the witness statement of Ms Bottin, who is HR and office coordinator for the employer. So that refers to the fact that - I'm sorry, I've got the wrong page number there. Sorry, one moment. Sorry, back to page 42, I should be clear.

PN224

So page 42, so the same statement of Mr Wyatt, he says there's then a request for a second meeting from Miss Tino's husband who was also an employee at the mine, and the meeting started but the meeting was then quite - well, at paragraph 27 of page 42 of the appeal book he says, "The request was to have another meeting about Miss Tino's redundancy", which he agreed to do and the meeting took place.

PN225

But then the statement recounts the fact that the meeting was essentially sidetracked by Mr Wyatt talking about his issues, which I don't need to get into for the purposes of this submission. But there was another meeting. There was another attempt to discuss the issue and the meeting took the course that it took. So those are the two meetings that took place on 16 December. Then the page I was taking you to before is page 37 of the appeal book, and that's the statement of Ms Bottin.

PN226

And at that statement it refers to a meeting that took place in the office of the company in Perth, and at paragraph 20 and 21 there's an express discussion about a possibility of a redeployment to another role and it's explained that that's not possible for the reasons outlined. So there was a role which was the maintenance administrator role and Mr Hart at that meeting said to Miss Tino - and this is on page 37 of the appeal book:

PN227

That position is still filled. When that person goes on leave -

PN228

The person was going on parental leave in May:

PN229

- I don't think we're going to replace her anyway.

PN230

So the issue was discussed and the view was that there was not really an option in that redeployment.

PN231

VICE PRESIDENT WATSON: Sorry, what page was that?

PN232

MR ELLERY: Page 37 of the appeal book, your Honour, at paragraph 21. So just to put this back in the context of the chain of events, there was the two meetings on 16 December, then there's the 20 December meeting in the office. In between those meetings there is the email from the applicant to the company, and that appears at page 51 of the appeal book, where the redeployment option is again raised, which are the issues I've just taken you through about the person going on parental leave in May, and so that was then discussed in the meeting on the 20th. So that's on page 51 of the appeal book.

PN233

So my point with all of this, your Honour, is that there has been a series of meetings and discussions, some in writing, some in face to face meetings about these issues. The fact that they did not result in a change to the outcome does not mean there were not genuine discussions. It's not a requirement of the Act or of the clause that the employer must make up some new role to be able to have a redeployment. It has never been the requirement. It's incumbent on the employer to seriously consider other options, other redeployment options. That was done.

PN234

There were no options, and that was discussed. And it also suggests and emphasises that the employer did give prompt consideration to matters that were raised by the employer because, as I've said, she raises on the 18th a particular issue. On the 20th that's discussed and resolved. The fact that it was resolved in the negative or not to her liking doesn't mean the employer did not genuinely and properly consider it, and promptly consider it.

PN235

VICE PRESIDENT WATSON: So you say that you need to look at the totality of the circumstances, the two meetings on the 16th and the further meeting on 20 December. That matters of redeployment were raised; they were raised by the employer, saying it has looked and there are no other jobs. And then there was the second meeting and it was raised by Miss Tino of a particular other job and it was responded to. And you say that the totality of those discussions satisfy the requirements of clause 8.1(b)?

PN236

MR ELLERY: We do, your Honour, with the only addition that there was further correspondence following that chain of events. So on 20 December the company wrote again to Miss Tino, and that appears at appeal book 92, which confirms essentially the discussion that took place on the 18th. So appeal book 92, and confirms the consequences.

PN237

VICE PRESIDENT WATSON: But what's really the difference between considering redeployment options, which is a separate requirement in the definition of genuine redundancy, and the obligation to consult about the redundancy in section 389(1)(b)?

PN238

MR ELLERY: Well, they overlap to some extent we would say. They're not exclusive or entirely separate from each other, and 389(1)(b) is obviously all about the award clause. It's not some broader or separate concept of what consultation might mean. It says simply "What is in the award" or an agreement as the case may be, and "Did you do what that requires?" And where they overlap then, you know, we say the same facts are relevant to both circumstances, and you've looked at the award - - -

PN239

VICE PRESIDENT WATSON: Well, the requirement in subsection (2)is not so much an obligation to discuss, it's whether the conclusion reached in relation to that issue is reasonable.

PN240

MR ELLERY: Well, that's right. I mean, that again - I'm sorry, I took your earlier question to be referring to point (1)(b) of the section, not section 2.

PN241

VICE PRESIDENT WATSON: Yes.

PN242

MR ELLERY: I'm not sure if I misunderstood your Honour.

PN243

VICE PRESIDENT WATSON: You referred - yes, can I be a bit clearer. You've referred us to evidence where redeployment was discussed, and the Commissioner considers that separately and finds that the employer did consider redeployment. And I think a proper reading of the conclusion is that he did not consider that that conclusion was unreasonable. But you seem to be referring to the evidence relating to redeployment as part of the evidence that relates to the obligation to consult about the redundancy.

PN244

MR ELLERY: Yes, I am. I'm referring to both senses that you've just referred to because we say that among other things it goes to discharging the obligation of the award in clause 8.1(b)(i), which is:

PN245

…discuss with the employees affected…the introduction of the changes…the effects the changes are likely to have…and measures to avert or mitigate the adverse effects…

PN246

And so clearly redeployment is one of the most obvious and primary measures that could be considered in terms of mitigating adverse effects. If position X is abolished, the most obvious and beneficial way to minimise those effects would be to say, "Here's position Y and you should consider it". It's not the whole story but it's a large part of the story, we say.

PN247

VICE PRESIDENT WATSON: So are we to read the decision of the Commissioner as finding that neither of the meetings on the 16th amounted to consultation as required by the clause, but the meeting of the 20th did?

PN248

MR ELLERY: Well, our submission is that that's not the case. That all those meetings did go to the consultation obligations, and in that regard that part of the decision is not correct.

PN249

VICE PRESIDENT WATSON: But isn't there a difference between saying, "Look, we've decided to make your position redundant, but before doing so we're discussing our decision with you and giving you a chance to say anything you wish to in relation to that, before we make any final decisions", there's a difference between that situation and saying in quite definitive terms, "We have decided to terminate your employment. We're terribly sorry. We thank you for your service and we've looked at alternative jobs and there aren't any"? Doesn't the latter approach effectively preclude genuine consultation as required by the clause?

PN250

MR ELLERY: Well we say, with respect, no it doesn't, and clearly this factual scenario is closer to the second scenario that you've outlined than the first, and we'd accept that the first would be the more orthodox or preferable approach in some ways. But that's not what we're dealing with here. You know, the evidence is that there were other positions canvassed. The applicant raised another specific position that she was aware of and, I mean, bear in mind we're not talking about a business like Rio Tinto where there may be however many thousands of positions available or occupied around Australia.

PN251

There's a - it's not that vast a business. But, you know, there were discussions in each of those meetings about the possibility of redeployment. There was a specific redeployment scenario proposed and the employer said, "Look, this is why that's not an option". So they considered it and responded. Which also, I say, goes to my earlier point about it can't be the requirement that you have discussions for the sake of having discussions.

PN252

There has got to be some meaning or some substance to them, and there's no point in an employer for the sake of window dressing to meet what could be said to be its statutory obligations, to go away and have another meeting when it's clear that there is no redeployment available. That's the reality of the situation we had here. The employer had exhaustively canvassed redeployment before 16 December. The applicant raised other possibilities and they were discussed and addressed.

PN253

VICE PRESIDENT WATSON: Doesn't the determination of that question bring into play the authorities that have considered the same question; what is sufficient to satisfy the requirement to consult, and the sort of statements that are referred to in the cases?

PN254

MR ELLERY: To that extent it does, and we've also outlined in our written submissions that if you are, for example, against us on that point and you made the finding that, "Well, technically there wasn't consultation", it's a very important matter to decide what difference could it or would it have made, and we've addressed that in some length in our outline of submissions. So I can come to that when we've moved on from this, if need be.

PN255

But obviously, as I've said, we don't concede or accept that 389(1)(b) or 389(2) were not complied with or addressed. It's our submission that they were. We say the Commission should address those issues in a practical and commonsense way and not come out with a position that somehow requires employers to have discussions for the sake of having discussions when there are generally no alternatives or options that are available.

PN256

VICE PRESIDENT WATSON: Well, are there any cases referred to in your outline or otherwise that support the submission that you've made that the second scenario that I described earlier satisfies a requirement to consult in a standard consultation clause?

PN257

MR ELLERY: I'm sorry, I'm not sure I'm following you. What do you mean, your Honour, by you say the second scenario? Which scenario are we talking about now?

PN258

VICE PRESIDENT WATSON: Well, I talked about the difference between communicating a decision and inviting input into it, compared to an alternative scenario of saying - - -

PN259

MR ELLERY: Yes.

PN260

VICE PRESIDENT WATSON: - - - "We've made a decision and we're sorry, and here is a notice for termination, and thanks for your service" and "We've had a look at alternative jobs and there aren't any". So that which you've I think agreed, that the actual facts here are more in line with that, without accepting it as precisely parallel in all respects. But Mr Jones refers to cases which identify the insufficiency of consultation. So my question is are there any cases which address that second type of circumstances which suggests that that is sufficient, apart from the one under appeal?

PN261

MR ELLERY: Yes. Yes, I understand your point. Well perhaps at that point, your Honour, I might ask if I can hand up a bundle of authorities that we've referred to, which are the authorities that are contained in the - or referred to in the written outline. And the most obvious one that I can come to at the top of my mind is one which appears at tab 8, which is one that your Honour will be familiar with, Maswaan or Maswan - I'm guessing at that pronunciation - v Escada (2011) FWA 4239. And the relevant comments in that case, without going through all the facts of it, for example are at page - paragraph 39 where it's observed, "The failure to consult" - this is halfway through that paragraph, paragraph 39:

PN262

The failure to consult is not a trivial matter.

PN263

And we can't cavil with that:

PN264

But as it is clear that consultation was highly unlikely to have negated the operational reasons for the dismissal or lead to any other substantive change, I do not believe that the failure to consult…rendered the dismissal unfair.

PN265

I'm paraphrasing now.

PN266

VICE PRESIDENT WATSON: But that's dealing with the step that wasn't reached in this case.

PN267

MR ELLERY: Well the fundamental point, we say, is the same which is that in that case the criticism was consultation wasn't properly addressed but the decision was, "Nonetheless it's not an unfair dismissal because this wouldn't have made any difference".

PN268

VICE PRESIDENT WATSON: But this application was dismissed on jurisdictional grounds - well, not jurisdictional grounds but on the basis of a finding that there was a genuine redundancy as defined. The case you've just referred to was a case where it was found that it was not a genuine redundancy because of the failure to consult, but the termination was nevertheless not unfair, and the passage you referred to is in the second consideration of the second question.

PN269

MR ELLERY: Yes.

PN270

VICE PRESIDENT WATSON: The consideration of the first question is at paragraph 19 and following.

PN271

MR ELLERY: Yes, your Honour, and we accept that's obviously a summary of what has been a longstanding principle of the Commission, well established. But the point I'm just making goes to the points about section 400 of the Act about public interest and whether there's any utility in this matter. Because if the Commissioner did get it wrong and if there was a failure to properly consult or to comply with any of the provisions of section 389, what difference could or would that have made and, on the evidence, clearly none.

PN272

And there are cases where for example it has been taken that, "Well, you should have consulted, and had you consulted properly it would have taken another two weeks to reach the same outcome. And therefore in the scheme of things we'll decide whether that's an unfair dismissal or not". And that - one of those cases, if you just bear with me a moment I'll identify it. Yes, it's the case of UES which appears in the bundle on the file.

PN273

So it's tab 11 and the relevant comments, findings are at paragraphs 35 and 53, which is that - well, I've summarised the essence of it, which is that there should have been consultation and there wasn't. Had that happened it would have been another two weeks of employment. So the outcome in that particular case was the finding was there should be some compensation awarded. But consider that in the context of this case, where the evidence is that the applicant was in fact paid more than her statutory entitlements on redundancy. The evidence is that she was paid an additional two weeks' pay on top of what she was entitled to already, and so that appears at evidence.

PN274

It appears at page 38 of the appeal book in Ms Bottin's statement, which summarises the scenario that the applicant was paid all of her statutory entitlements on redundancy but also through a combination of circumstances paid an additional two weeks above that which she was entitled to. And it's - you know, this in the context of a proceeding where it's not in evidence, there's no suggestion that there's some other job that could have or should have been made available. The evidence is that there were no other positions available.

PN275

VICE PRESIDENT WATSON: But the majority in that case said that consultation had not occurred but if it had occurred it would have been a genuine redundancy, and consultation may not have altered the result. But it would have taken some time. There would have been a further period.

PN276

MR ELLERY: Yes.

PN277

VICE PRESIDENT WATSON: So there is something to be compensated for through the arising from the failure to carry out consultation.

PN278

MR ELLERY: Yes, I accept that characterisation of it, your Honour, and that's why I draw the Full Bench's attention to the evidence, which is that this applicant was paid statutory entitlements for termination and an additional two weeks through an error, essentially. But she was paid it nonetheless. So we say - and this is in a fairly narrow set of facts where it's not a vast company. It's clearly and repeatedly and firmly put in evidence that, "We've looked at all the redeployment options. There is nothing else". So we say what else could have or would have been done, or what would have changed - - -

PN279

DEPUTY PRESIDENT McCARTHY: Mr Ellery, 389(2), is that to be read as part of 389(1)(b) as though - is redeployment, is it obligatory to consult or discuss redeployment other than in response to matters raised by an employee in discussions about a - - -

PN280

MR ELLERY: Well, yes, we would say it's not, your Honour. I mean, the obligation is to "discuss measures to avert or mitigate the adverse effects", which obviously could mean any range of things. That's the obligation in the award provision under the discussion and consultation obligation which is the 389(1)(b) requirement. And as I've observed before, in practice redeployment if often one significant or a major part of that possible discussion about mitigation of effects. But we'd acknowledge it's the whole of it necessarily.

PN281

DEPUTY PRESIDENT McCARTHY: Yes, I think there's - I can't remember exactly but there was one Full Bench authority that described 389(1) as inclusive. If those requirements are met then it is a genuine redundancy. But if they're not then 389(2) is exclusive, or including and excluding.

PN282

MR ELLERY: It's an area of definition, if I can put it that way, your Honour, because it's obviously - you're not in a genuine redundancy if it would have been reasonable for redeployment to have occurred.

PN283

DEPUTY PRESIDENT McCARTHY: Yes, that's why I think it was described 389(1) is "Those requirements met".

PN284

MR ELLERY: Yes.

PN285

DEPUTY PRESIDENT McCARTHY: "Genuine redundancy. But if it is, then if this requirement is not met, it's not". And then 389(2) doesn't seem to have any discussion, consultation, or any other requirement.

PN286

MR ELLERY: No, that's right. I mean, they go - they're separate, they go together, they overlap, obviously, but - - -

PN287

DEPUTY PRESIDENT McCARTHY: But they could be the same discussions if there were discussions.

PN288

MR ELLERY: Well, I think in most cases they will be the same discussions, with respect, because as I've said a couple of times, if you're going to talk about measures to mitigate the effects or adverse effects, obviously redeployment is usually going to be one of those issues.

PN289

DEPUTY PRESIDENT McCARTHY: But if an employer, for the purpose of meeting the requirement of 389(2), in the discussion of 389(1) said, "Well, I've met that requirement. There are no other jobs".

PN290

MR ELLERY: Yes.

PN291

DEPUTY PRESIDENT McCARTHY: "I don't need to consult about that. We'll discuss that. I've made my decision on the requirements of 389(2)".

PN292

MR ELLERY: Well, with respect, I think that's right, your Honour. That would satisfy that requirement.

PN293

DEPUTY PRESIDENT McCARTHY: But if there wasn't any opportunity to discuss the effect or alternatives of a dismissal when a position was made redundant, that could fall foul of 389(1)(b), which seems to be the argument here.

PN294

MR ELLERY: Yes that would be the case, I'd submit, your Honour. And obviously as I've taken the Full Bench to, in our view there was that discussion which satisfied both (1)(b) and (2), although the discussion in itself wasn't enough to satisfy (2). The position needed to be that in all the circumstances, whether or not there was discussion, was it reasonable for there to be redeployment. And we say the evidence is clear that it was reasonable for no redeployment because there were no positions, and that has been quite clearly and repeatedly stated in the evidence.

PN295

COMMISSIONER McKENNA: Could you just assist me? You've referred to the size of your client's operations. The employer's response I think indicates simply that there were more than 15 employees.

PN296

MR ELLERY: Yes.

PN297

COMMISSIONER McKENNA: Is the number of employees dealt with elsewhere? Can you assist me as to the size of the operation?

PN298

MR ELLERY: There's no evidence directly I think before the Commission as to that. The company is a publicly listed company on the Australian Stock Exchange and it's in the hundreds, is my understanding, but not thousands.

PN299

COMMISSIONER McKENNA: Thank you.

PN300

MR ELLERY: There's evidence in the statements that have been filed that the company had a catastrophic flood in February this year at the gold mines where this work took place, and as a result it has been further restructuring because of that. But on my understanding it's in the hundreds of employees.

PN301

COMMISSIONER McKENNA: Thank you.

PN302

MR ELLERY: Which was my point before about it's not Rio Tinto but nor is it a corner shop with three staff. It's in that realm. But there's no direct evidence about that exactly. We've been taken on a process through various elements which I had intended to address in any event through the - well, through my oral submissions and have already been addressed in the written outline. Just allow me a moment to just check that there's nothing else that I needed to address with the Full Bench.

PN303

Perhaps if I can just deal with one point and then I'll briefly summarise, and obviously I'm happy to deal with any other questions that the members of the Full Bench might have. But one point that hasn't been directly addressed but it raised in the written appeal grounds, and I think I need to respond at least briefly. There has been criticism made of the process of the decision making and the lack of a hearing, and we've already addressed the legal considerations about that, and I don't think I can take that point any further. I've made our submissions about that.

PN304

But there's also, if I could put it this way, a natural justice point that, you know, wrongly Commissioner Cloghan has favoured the evidence of the employer and not had sufficient regard to or paid enough weight to evidence of the applicant. And we simply say in b`road terms - and the details are in my written outline. But in broad terms the Commissioner has clearly carefully considered all the evidence, has made specific reference to all the evidence, the evidence of both parties on various critical points, and has assessed that. So it can't be said that there has been some bias or natural justice issue.

PN305

Of course it's trite for a Full Bench to point out but the fact that one member of this Full Bench may have reached a different conclusion based on that evidence, or may have formed a different view of those particular facts, is not the issue. The issue was, was there a significant error of fact. Clearly, in this case Commissioner Cloghan considered and specifically has addressed and comments on the evidence on each point of both parties and has made the findings he has made. So we say that that evidentiary issue has been properly addressed by the Commissioner at first instance.

PN306

So to conclude, if I could, we start where we began which is section 400 of the Act, which we say is a critical and primary consideration, and for the reasons that we've already taken your Honour and the other members of the Full Bench to, we say the applicant has not properly addressed those issues and does not satisfy - or this matter does not satisfy the test in section 400. These issues, these legal principles out of these issues are well settled.

PN307

The Commissioner has applied these facts to these principles and whether or not one would have taken the same conclusions would not, we say with respect, shed any new light or illustrate these issues for other parties or develop any significant new principle. It's just another application of the facts to another particular set of circumstances. Issue was made of the hearing process. We say this was a process that the Commissioner was entitled to embark on, given his directions, given section 397 and 399, and given the exchanges between the parties about the hearing process during the matter at first instance.

PN308

We also say that section 400(2) needs to be carefully considered, and again this matter does not satisfy that test. There was not a significant error of fact. There were factual conclusions reached and there was evidence to support each one of those conclusions, and that in itself means there's not a significant error of fact. Finally we come back to a point I just made a few moments ago which is that - and this goes to the public interest matter as well - there is no utility in these proceedings.

PN309

The applicant was inevitably going to be dismissed on the grounds of redundancy. There was no redeployment that was available. That matter was carefully considered both during the discussion and consultation phase and separately from that. And so there was no possibility of a different outcome had there been any different discussion process or a more lengthy or involved discussion process embarked on.

PN310

As we've observed, the applicant was paid an additional two weeks' wages on top of her statutory entitlements, and we say at the most that's the period that any additional consultation could have taken place, which would have still led to the same outcome, and we've already referred you to the authorities on that point. Unless there are any other questions for me, that would conclude the respondent's submissions.

PN311

VICE PRESIDENT WATSON: Thank you Mr Ellery.

PN312

Mr Jones?

PN313

MR JONES: I'll be brief, your Honour. To the question of 389(2) we say that yes, it may be possible that a redeployment option may be considered as part of 389(1)(b), but it may not be the only option. There may be lots of other reasons why someone would want to be engaged in that consultation, and it seems to be that 389(2) applies that you've had the consultation, you've canvassed a number of options, and it subsequently occurs at some point after the dismissal might have taken place that in fact there was a redeployment opportunity that was taken up which would invite an application for a harsh, unjust and unfair dismissal application.

PN314

And I don't recall a specific reference but I understand that there have been - there was a recent decision of the Commission that granted extenuating circumstances for an application for unfair dismissal outside the statutory 21 days precisely because of an issue that arose in relation to a redeployment option that was available. So we say it's quite distinct but it may well form part of a 389(1)(b) discussion. With respect to the public interest, I have outlined that I believe that the application does stand in the public interest.

PN315

That it is about the intersection between the Fair Work Act and the modern award, and that it does relate to whether or not in the context of conflicting or disputed evidence, or whatever, whether or not the Commission might in fact have even exercised an option to conduct a conference under section 397. I note without labouring the point that the directions that were issued by Commissioner Cloghan provided for a very small time period for those applications for hearings to be made. I don't resile from the fact that we didn't make an application.

PN316

But we did see it as being an issue around the threshold issue of genuine redundancy because the directions papers issued by the Commissioner go on to say that if he finds jurisdiction then the matter would be listed for a hearing on merit, which would be the question where we might have contested evidence et cetera. So I don't want to labour that point any further, and I stand by the submissions that I've submitted.

PN317

VICE PRESIDENT WATSON: Well, what do you say to Mr Ellery's point that given the circumstances disclosed in the evidence he says it's highly unlikely that there would be any different ultimate result if there had been a consideration of whether the termination was harsh, unjust or unreasonable, because the decision was obviously a business decision? If consultation wasn't complied with technically, it may have only led to a brief period of delay, and there has already been a payment in excess of the relevant notice period in any event. So it's unlikely on any view of those facts to lead to any different outcome than the outcome that you now have.

PN318

MR JONES: That may well have been a possibility, but we won't know. The question of the statute is to provide the opportunity for the discussion to look at the possibilities and the alternatives. In Miss Tino's case she was initially employed as a laboratory technician for a period of three months before she became the site accounts administrator.

PN319

So there may well have been other options for Miss Tino within the context of the operations of Regis Resources. So we - in my view it is speculation to suggest that, "Well, the outcome would have been the same anyway and therefore we don't need to have it". The statute provides for a period of consultation precisely because there may be an alternative.

PN320

VICE PRESIDENT WATSON: But the conclusion on the reasonableness of the redeployment, the decision on redeployment, that the employer considered redeployment options and the conclusion in relation to that was reasonable - - -

PN321

MR JONES: Yes.

PN322

VICE PRESIDENT WATSON: Doesn't that effectively close out any - - -

PN323

MR JONES: That only closes - - -

PN324

VICE PRESIDENT WATSON: - - - realistic remedies?

PN325

MR JONES: Not necessarily, because my submission is that that goes to the question of 389(2) not to 389(1)(b). Miss Tino, for example, I mean hypothetically might have proposed 12 months' leave without pay or a reduction to a part-time position. That doesn't necessarily mean that that's a redeployment option. That just means there's an option on the table for consideration as to whether or not there should be mitigation of the redundancy. HR managers deal with those kinds of issues hopefully all the time in their considerations. So I would separate out the discussion on 389(2) and redeployment from the obligation under the statute to consult under 389(1)(b).

PN326

COMMISSIONER McKENNA: Could I seek your assistance? Apart from your client putting forward that she might be a maternity leave replacement, did your client - was there evidence of your client suggesting any other suitable position or role for redeployment?

PN327

MR JONES: One of the contested issues was whether or not - was the timing of the changes in the workforce and whether or not her role was specifically kind of identified as part of a process. We don't know because we don't know whether there was a document produced. So she says effectively that there was a role for her in the position that she was doing. Other people had already left prior to the review being concluded. The Commissioner reached a different view in relation to that. That is a matter which would hopefully, if the appeal is successful, allow us to deal with then on the merits.

PN328

COMMISSIONER McKENNA: Right, and just on that issue of process as it were, a document titled A Statement of Facts which is in the papers, it's said at clause 14 or paragraph 14:

PN329

We seek the attendance of -

PN330

and then there are a number of named individuals:

PN331

…at the Commission herein.

PN332

And clause or paragraph 15 further reads:

PN333

We seek documentation from Regis, being the review report and minutes, recordings, emails and text messages relating to the review.

PN334

Now this is an unusual approach to deal with either attendance or a production of documents?

PN335

MR JONES: I don't know whether it's an unusual approach. I took that approach because I believed that there was the possibility of alternative evidence being provided, and substantiation of evidence that could have been before the Commission by virtue of some record that said, "Here's the review document", because nothing had been produced to substantiate that element of the evidence.

PN336

COMMISSIONER McKENNA: Were any steps taken concerning production of documents by - - -

PN337

MR JONES: No.

PN338

VICE PRESIDENT WATSON: Thank you Mr Jones.

PN339

COMMISSIONER McKENNA: And thank you as well.

PN340

VICE PRESIDENT WATSON: Mr Ellery?

PN341

MR ELLERY: Only very briefly, and I don't want to take up much time. But in response to the Commissioner's last question, at pages 57 and 58 of the appeal book there's an exchange of emails where the issue is being debated.

PN342

VICE PRESIDENT WATSON: 57?

PN343

MR ELLERY: 57 and 58, and nothing further happened. There was no subpoena or application for one issued.

PN344

VICE PRESIDENT WATSON: Yes, we thank counsel for their submissions and we propose to reserve our decision in this matter. We'll now adjourn the proceedings.

<ADJOURNED INDEFINITELY [3.58PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #J1 APPELLANT'S WRITTEN OUTLINE OF SUBMISSIONS PN144
EXHIBIT #E1 RESPONDENT'S WRITTEN OUTLINE OF SUBMISSIONS PN153