C2015/4963, Transcript of Proceedings [2015] FWCTrans 681 (23 November 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052699

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DEPUTY PRESIDENT SAMS

C2015/4963

s.120 - Application to vary redundancy pay for other employment or incapacity to pay

DRW Investments Pty Ltd T/A Wettenhalls

and

Mr Timothy Richards; Mr Peter Annetts; Mr John Mannix; Mr Ronald Overton; Mr Anthony Zinna; Mr William Dyer

(C2015/4963)

Sydney

11.06 AM, WEDNESDAY, 11 NOVEMBER 2015

Continued from 9/11/2015

PN1207

THE DEPUTY PRESIDENT: Yes, I note the appearances are the same. Yes Mr Baroni.

PN1208

MR M BARONI: Thank you, your Honour. My apologies for my lateness this morning, but I thank the Commission for allowing me that discretion. Your Honour, all the evidence had concluded on Monday as you're well aware, and today is in relation to submissions. Now first of all can I say that we rely on our submissions that were filed on 9 October and all of the evidence that has been filed and sworn over the course of Monday.

PN1209

THE DEPUTY PRESIDENT: I'll mark your submissions SB1.

EXHIBIT #SB1 APPLICANT'S WRITTEN SUBMISSIONS

PN1210

MR BARONI: Thank you. Just by way of a little bit of background to put into context why the application is made, your Honour is aware now about the circumstances of how the contract came to an end and why, and the new roles which were taken up by the former employees, and that was nearly 12 months ago. It then arose two or three months ago, I can't recall the exact date but the TWU filed an application in the CIM seeking for the payment of redundancy and it was that action that prompted this application.

PN1211

Perhaps for abundant caution is one reason for making the application, given that action by the TWU, and those proceedings have now been stayed pending the outcome of these proceedings. That's how I understand the proceedings are at. So therefore on that basis our argument proceeded in two ways. One was that my client had obtained, if you want to use that word, the word relevantly used in the legislation, had obtained employment for each of the employees and that employment was suitable employment. The alternative was that in any event there were roles within the organisation which was in the skills and capacity of each of the employees which were available for them to take.

PN1212

However can I proffer this alternate submission as well, and that is that it became obvious throughout the course of the proceedings on Monday that we say there was no termination at the initiative of the employer, and that's one of the jurisdictional facts that the Commission must be satisfied has occurred in dealing with this matter. Now your Honour might say "Well, why did you make the application?" and the application is made I think for abundant caution and perhaps it wasn't entirely clear at the time that the evidence was filed what in fact had occurred, for one reason or another which I can't necessarily explain. But the fact is that the evidence of all of the drivers was that there was no notice given by the employer of termination. So factually this case is relatively simple in terms of what occurred.

PN1213

THE DEPUTY PRESIDENT: Well, what was it? It has got to be characterised as something.

PN1214

MR BARONI: There was a termination.

PN1215

THE DEPUTY PRESIDENT: What do you say? It was a mutual termination?

PN1216

MR BARONI: No, not at all. It was a resignation on behalf of the employees because they secured employment with - - -

PN1217

THE DEPUTY PRESIDENT: Well, an implied resignation?

PN1218

MR BARONI: Yes. I mean obviously because you can't work for the two different people at the same time. So as a matter of logic we say what the employees did is cease their employment with my client and commenced employment with a new employer some time thereafter, and as the evidence falls I think they ceased their employment on a Friday and they commenced on a Monday. Now because there are - I mean the fact is that all of them conceded that there was no notice of termination. There is no evidence that there was a notice of termination and my clients have said that they weren't terminated in that respect. Now what the intention of the parties was in - - -

PN1219

THE DEPUTY PRESIDENT: Doesn't the term "termination payment" on the pay slips at least infer something?

PN1220

MR BARONI: It infers something but I don't think it infers that there was a termination on the initiative of the employer. I mean as night follows day, your Honour, and certainly in my experience that when I've resigned on the few occasion I have, it says "termination pay".

PN1221

THE DEPUTY PRESIDENT: Yes.

PN1222

MR BARONI: I mean that's what it is. I mean, there is a termination of the employment relationship.

PN1223

THE DEPUTY PRESIDENT: Yes.

PN1224

MR BARONI: The question here is whose initiative was it at, and we say it was at the initiative of the employees by conduct, and that conduct is the fact that they ended up taking employment with somebody else. Because if they had not taken that employment with somebody else they all conceded as well that they'd still be working with DRW. That's the evidence. That's not in dispute. Can I deal with that issue this way then, and this is not to say that it detracts from my other arguments, your Honour. It's just an alternative, and perhaps now becomes a primary submission for the Commission to deal with in relation to this matter.

PN1225

Now can I hand up if I may, and I apologise for doing this piecemeal. This was a decision of his Honour Watson VP, CAE Australia Pty Ltd v Mr Jim Zekants and Roy Edwards [2012], and the facts about this case was that both were employed by CAE Australia as I think engineers working on a Boeing contract. Boeing terminated that contract and offered those two same employees work on the same terms and conditions, as I apprehend from the decision, and they commenced working with Boeing. The employer had made some offers, but after those offers from Boeing had been made and his Honour then found that notwithstanding an application was made by CAE pursuant to section 120 of the legislation, that he found that there was no redundancy because the termination wasn't at the initiative of the employer. Now if I can take your Honour to paragraph 11 under the heading "The entitlement to redundancy pay" and he says this:

PN1226

It will be seen from the terms of section 119 set out above that the pre-requisites for an entitlement to be paid redundancy pay include termination of employment at the employer's initiative and the employer's decision to be based on the circumstance that the employer no longer requires the job done by the employee to be done by anyone. These are essentially questions of fact to be determined on the evidence before the court or tribunal called upon to determine these questions.

PN1227

On the evidence before me I find that CAE did not terminate the employment of the employees. Rather, it sought to retain them in employment by offering them alternative roles. The employees nevertheless chose to accept employment with Boeing thereby bringing their employment with CAE to an end. They knew that they could no longer work with CAE if they accepted the Boeing offers. It is not to the point that the CAE Roles were offered late in the piece, that the Boeing roles were more attractive or that they thought that the choice was clear. They chose to accept the Boeing offers and in doing so, brought about the termination of their employment with CAE. The employees were not terminated at the employer's initiative.

PN1228

Now I must say to me that case resonates on all fours with the situation that occurred here because as I said the evidence makes it quite clear that the chain of events was that - again getting back to the evidence, and I haven't reviewed the transcript but from my memory by and large the evidence was that there was a preference that the employees worked with Kings. That's the work they wanted to do. They'd been doing that for a number of years. There's nothing controversial about that. This contract had ultimately changed a number of hands over many years through tender processes, and the same drivers by and large have continued to do this work over a number of years, and they expressed this view to their employer, DRW at the time, that if they could achieve that, that's what they wanted to achieve; continuing employment with Kings.

PN1229

THE DEPUTY PRESIDENT: His Honour went on to find that the first requirement for an application of this kind is that the employment has been terminated at the employer's initiative.

PN1230

MR BARONI: Yes.

PN1231

THE DEPUTY PRESIDENT: If it had not been, as he found there, then section 120 has no application and no work to do.

PN1232

MR BARONI: Correct, and he dismissed the application.

PN1233

THE DEPUTY PRESIDENT: That's right.

PN1234

MR BARONI: But he did - - -

PN1235

THE DEPUTY PRESIDENT: But you brought the application.

PN1236

MR BARONI: I have. I have, your Honour, and I don't - obviously I can't say anything about that other than yes I agree I brought the application. But his Honour also makes some obiter - well, not obiter but he makes an observation that in this case - - -

PN1237

THE DEPUTY PRESIDENT: Wasn't that the basis upon which the union took the matter to the CIM?

PN1238

MR BARONI: What was the basis?

PN1239

THE DEPUTY PRESIDENT: Wouldn't that have been the basis, that there was some underpayment or breach of the agreement?

PN1240

MR BARONI: I assume, and I haven't looked at the application for some time, but to the best of my memory was that the application sought the payment of redundancy because there was an entitlement to redundancy. So ipso facto I assume their argument was that they were redundant as a matter of fact and as a matter of law they were entitled to redundancy payment. That's I assume how the application went but - - -

PN1241

THE DEPUTY PRESIDENT: What was said to be in breach, the NES or the agreement?

PN1242

MR BARONI: Well, the union's position was it was the agreement. Again, in my respectful submission, nothing really turns on what they say was in breach, whether it's the agreement or the NES, because their position was there was an entitlement to redundancy which flowed from the agreement. We initially had said "Well, it flows from the NES".

PN1243

THE DEPUTY PRESIDENT: But if the union is right and the alleged entitlement flows from the agreement and not the NES, then what orders could I possible make under this section? None. Wouldn't I be obliged to dismiss the application?

PN1244

MR BARONI: Yes and no. I know that's an odd answer but I want to be fair to my friend and I can't say things that are not appropriate to say. But I think, your Honour, we handed up a copy of the enterprise agreement.

PN1245

THE DEPUTY PRESIDENT: Yes.

PN1246

MR BARONI: Which applied to them prior to the termination of their employment.

PN1247

THE DEPUTY PRESIDENT: Yes.

PN1248

MR BARONI: And I say that but not conceding anything. It's just as an easy reference term. If one looks at the redundancy clause, if I can find it.

PN1249

THE DEPUTY PRESIDENT: But it's clearly not the NES.

PN1250

MR BARONI: No, but it says it supplements the NES.

PN1251

THE DEPUTY PRESIDENT: Yes.

PN1252

MR BARONI: So in my submission the way I understand that, if I can find the clause, your Honour.

PN1253

THE DEPUTY PRESIDENT: 37.

PN1254

MR BARONI: Thank you. I'm indebted to your Honour for his assistance.

PN1255

THE DEPUTY PRESIDENT: It's a little, if I might say, inelegantly phrased because - - -

PN1256

MR BARONI: It's a bit obtuse but I - - -

PN1257

THE DEPUTY PRESIDENT: Because the first sentence says, "Redundancy is a matter covered by the NES", and then it says the terms supplement the NES.

PN1258

MR BARONI: Now one way to construct that - you're quite right, and I was pondering about this last night, as I do.

PN1259

THE DEPUTY PRESIDENT: You must have a boring life Mr Baroni.

PN1260

MR BARONI: Well, no, your Honour, I mean I've got to prepare and try to convince you that I'm right. So in some respects it might be a boring life. But anyway, one could read that as meaning the definition and the circumstances surrounding redundancy are dealt with by the NES. What this clause then adds on top of that, the amount that one should pay if there is a redundancy as contemplated by the NES. I hope your Honour has understood my submission in relation to that.

PN1261

THE DEPUTY PRESIDENT: Yes.

PN1262

MR BARONI: So I think that's all this does.

PN1263

THE DEPUTY PRESIDENT: But how do you then translate that to what is said in section 120 about the preceding amounts which are not the same?

PN1264

MR BARONI: But all that does - - -

PN1265

THE DEPUTY PRESIDENT: Assuming your argument is right, how do I incorporate then what is said to have been - should have applied here into one's 119 and then, as you say, discount it or remove it entirely?

PN1266

MR BARONI: Because my submission is all the agreement does is simply say that but for what is contained in the NES the amounts in the agreement are what shall apply. The rest of the NES applies. So it doesn't remove your discretion and in my submission there's nothing in this agreement that would suggest in terms of clause 37 that there was an agreement between the parties that somehow they would remove a right which is permissible pursuant to section 120. I mean they have to be - - -

PN1267

THE DEPUTY PRESIDENT: In a technical sense might it not mean that if you're correct in your substantive submission that all right, the redundancy scale in 119 is reduced to nil but anything that arises extra in respect to the agreement should be paid?

PN1268

MR BARONI: No. No, that's not what I'm saying.

PN1269

THE DEPUTY PRESIDENT: Well, that's one way of looking at it. Because you're asking me to operate and make orders under 120 which are predicated on a scale which is set out. It doesn't talk about any other scale or supplementary scale. It says that scale.

PN1270

MR BARONI: Yes. Just bear with me a second.

PN1271

THE DEPUTY PRESIDENT: Perhaps we're unduly complicating all of this.

PN1272

MR BARONI: Maybe. I think I understand your Honour's point but I must say it's not the way my submission operates. My submission simply operates on this proposition, and perhaps I think your Honour may be overly complicating this. It's simply this that all the provisions of section 119 and 120 apply to this enterprise agreement but for the quantum is a greater amount. So if there was a redundancy and the prerequisites for the jurisdictional facts were founded as required under section 119, then there would be a redundancy payable and then 120 kicks in.

PN1273

THE DEPUTY PRESIDENT: But you've already told me that the jurisdictional foundation has not been established because they weren't terminated at the initiative of the employer.

PN1274

MR BARONI: That's my primary submission but then we've gone into I think a debate between yourself and myself, your Honour.

PN1275

THE DEPUTY PRESIDENT: Yes.

PN1276

MR BARONI: About whether one - - -

PN1277

THE DEPUTY PRESIDENT: Well, it's really a debate about the union's argument that the agreement applies and not the NES, isn't it?

PN1278

MR BARONI: That might be a matter for Mr Warnes to articulate. I'm not the sharpest tool in the shed but I'm still struggling to - my simple submission is this, that the application made before the CIM alleged the redundancy was payable pursuant to clause 37. I think it's as simple as that, and without the documents in front of me I can't elaborate any further, but I think the proposition is as simple as that. Mr Warnes will - - -

PN1279

THE DEPUTY PRESIDENT: Just remind me - I haven't seen the recent legislation about CIM but is that now regarded as a local Court for the purposes of recovery?

PN1280

MR BARONI: It's a Court, yes. So it's either the Federal Circuit Court or a State Court.

PN1281

THE DEPUTY PRESIDENT: I see.

PN1282

MR BARONI: An eligible State Court I think is the term used in the legislation and, as I said in my submission, because it's slightly changed now given the way the evidence has fallen out, and perhaps the way we've conceptualised the evidence and the facts of what actually happened, and for whatever reason that's the way it has panned out, so my submission is that there is nothing to do under section 120 because 119 hasn't been made out. So there is no redundancy at all because of that - - -

PN1283

THE DEPUTY PRESIDENT: And yet this is your application.

PN1284

MR BARONI: Yes it is and again that's why I said, your Honour, that in many respects it's on all fours with the decision of his Honour Watson VP because he makes this very point - - -

PN1285

THE DEPUTY PRESIDENT: Yes, I see the employer was the applicant there.

PN1286

MR BARONI: Yes. But, you know, if we can call it - notwithstanding that fact it doesn't detract from the argument. It may be just that your Honour makes a conclusion that "Well, there was no redundancy. There is no work for the section 120 application to do. I dismiss the application", as his Honour did, and that's the end of the matter. I must say I'm inviting you to do that as my primary submission because again if one has reference to the Act - to the evidence it is clear that is what has happened, and Mr Warnes will no doubt put to you as one or two of the employees also suggested "Well, it has got 'termination' on this letter".

PN1287

My response is big deal. I mean it could have had "ham sandwich" on there and it wouldn't have made a difference because at the end of the day all it was is my last pay slip providing me with my final payment upon termination. That's not the test. The test is at whose initiative was the termination, and as night follows day, and it came out strongly in the cross‑examination, that you couldn't have two jobs at once. So there was an election made about which job I wanted and I say for the purposes of this debate it matters not that offers were or weren't made in relation to what was available at DRW, and we readily concede that.

PN1288

But there was discussion about "There are jobs here" which the employer at the time formed the view that they were suitable, and if they weren't suitable it was at that point in time when those jobs weren't suitable, if there was a rejection of the Kings offers, that the redundancy would then crystallise at that point in time, not at some other point. Because at the end of the day as I've said what has happened here is simply this, that because there was an agreed - I withdraw that. There was a preference shown by all of the employees that what they wanted to do was try and keep on working carting bricks, so the employer engaged in that - embarked upon that route to help them, and we say it did significantly more than just simply help them.

PN1289

It facilitated and secured employment for them by way of negotiation. But I'll come back to that in a moment. I'm just having a look at the application that the TWU filed in the Chief Industrial Magistrate's Court. Their reliance is simply on clause 37 and it's replicated in the application and they seek orders pursuant to clause 37 on the basis that there's a redundancy. So it may well be the case, your Honour, and I readily concede this, that upon a proper - well, on reflection it may well be that an argument could have simply been run before the Chief Industrial Magistrate that "Well, there was no termination so there's no redundancy because that's the only way it could be triggered."

PN1290

Having said that, it's not entirely clear to me what powers the CIM has other than to say that there's a redundancy or not. So in other words if it then strayed into that territory - and this is part of the explanation of why the 120 was filed, was that if it then strayed into that territory that "Well, there was a redundancy" the CIM on my understanding, given the way it operates, because it's only the Fair Work Commission can make orders in relation to 120, would have nothing to do but either to make a declaration, if I can call it that, or a finding that there was a termination or there wasn't, and that's it.

PN1291

So there was no then ability to exercise within the CIM any discretion about reducing the quantum that may be payable if a redundancy was found to have occurred, and I think that then flowed into the reason why the application was made. Because if you think about it logically, going back to the very time that the employees left, the employer didn't make any such application. It didn't think it had to. Rightly or wrongly -and we say correctly - it didn't have to. But then it's the TWU that threw a spanner in the works as usual, if I can put it that way, and filed the application which triggered this chain of events. So that's all I really want to - - -

PN1292

THE DEPUTY PRESIDENT: Then what if I was to find that section 120 is not applicable in this case because the preceding section has not been agitated or invoked? What would stop the union from simply re-agitating its matter before the CIM?

PN1293

MR BARONI: In my submission there would be an issue estoppel because there would have been the determination, and the fact that this is a Tribunal not a Court is irrelevant to the issue of estoppel, and that is that a finding was made by this Tribunal that there was no redundancy and that's it. That's the end of the story.

PN1294

THE DEPUTY PRESIDENT: Right.

PN1295

MR BARONI: You can't go and re-agitate your case again somewhere else and as your Honour is well aware there are multiple authorities for that kind of behaviour. I'm not saying behaviour in a pejorative sense but the CIM would have to have regard to the fact that a finding was made that there was no redundancy, because that would be its task. We would have to find that a redundancy was made to trigger the effect of clause 37, and in my submission, as I've said, it just hasn't happened because of the - - -

PN1296

THE DEPUTY PRESIDENT: Clause 37 of course has the provisos which no doubt you rely upon had the employees remained with DRW, and that is cannot reasonably redeploy for suitable alternative work.

PN1297

MR BARONI: Yes. Having said that, this was a - I do rely on that but I also concede, and I think appropriately, a similar issue not on those words but was raised in another matter I was in before Commissioner Roberts about - and it's a decision referred to in our submissions, and it had to do with a clause contained in the enterprise agreement that could simply allow the employer to relocate people to another site in reasonably unfettered circumstances, and the Commissioner in that decision made some obiter comments about the fact that he found it curious that my client didn't rely on that clause to avoid the redundancies.

PN1298

However the submission I made to Commissioner Roberts at the time was that it would seem odd to me that a clause like that could be agreed upon each time in an enterprise agreement, which the effect of it would be to usurp section 119. That would seem a very odd proposition because you would still have to be satisfied that notwithstanding your reliance on a clause that allowed you to transfer people to another site or redeploy them, the job was suitable and if it wasn't suitable - one assumes, thinking out aloud - and the employee said "Well, I don't want that job" and the employer says "Well, you either take that or you don't have a job" then there's a termination at the initiative of the employer.

PN1299

Then you get back into that debate whether the internal offer was suitable employment. You couldn't just simply say that the clause could be used to usurp section 119. That would be an odd outcome, in my submission. We've perhaps strayed a little bit. But getting back to the issue of those words, you know I say we don't even get to that point about the reliance on reasonable and reasonably be redeployed because again as the evidence fell it became clear by all of them that there was a choice. Putting aside what the job was, there was a choice to accept or reject, and this issue about acceptance and rejection became quite an important issue in the FBIS case in relation to the Court being asked to review a decision of the Full Bench of this Commission.

PN1300

I might relevantly just deal with that now, your Honour, if I may. Again, your Honour, this decision is referred to in our submissions but in my view the relevant issue that was raised by this case, apart from there seems to be in some respects a departure from the traditional approach of the Commission in relation to the employer being the moving force, they have reinterpreted that provision but nonetheless in my submission it makes little difference. Because ultimately what they say at paragraph 20 on page 8, your Honour, at around about point 5 - sorry, around about point 3, so the paragraph that starts "We would not regard". So I'll just start reading there:

PN1301

We would not regard the references to "effort", and to "purpose and effort" in this meaning as implying the existence of some kind, much less a strong kind, of "moving force" in bringing about the new state of possession referred to.

PN1302

And that's in reference to the definition of the Oxford English Dictionary:

PN1303

They imply, rather, that the possession must be the result of the conscious, intended, acts of the person concerned, as distinct from, for example, coming into possession of something by gift or inheritance.

PN1304

So in other words, if I can extrapolate that, what they're simply saying is that if the jobs were simply going to be offered in any event to the employees - which we say they weren't, and that's clear from the evidence and I'll come back to that in a moment - it gets you to the same point in a sense that the employer had to do something quite more than simply facilitate meetings or providing them with details. It needs to be more than that so I don't really think that anything much turns on that issue, and again I'll come back to the evidence of that in a moment. But more importantly what the Full Court ultimately made some observations about was this at paragraph 18 at page 8, and this is about halfway down that paragraph where they say:

PN1305

However, we would regard such an outcome as an instance of the reality that any new state of employment could only come about by the agreement of the new employer and the employee concerned.

PN1306

Now can I just stop there for a moment. I think what they're saying is there's only so much an employer can do, but it has to be more than simply open the door and provide a meeting room. But there's only so much they can do, so it's not some insurmountable test as counsel for FBIS had put. They rejected that argument. Then they go on to say:

PN1307

In this respect, we agree with Marshall J, in Allman, that to obtain employment for an individual means to procure another employer to make an offer of employment, which the individual may or may not accept as a matter of his or her choice.

PN1308

Can I just stop there, and we say the evidence disclosed the course of events adopted by Mr Waldrop to get them to a position that an offer was made on terms acceptable to the employees, and that's the key to my alternative argument and again I'll come back to some of the evidence of that in a moment. Then the Full Court go on to say:

PN1309

If the employment is not accepted, the question whether that employment was "acceptable" will not arise.

PN1310

And that's something, in my respectful submission, that the Full Court has developed somewhat further than has traditionally been fought. So if ultimately the employer takes the relevant steps to satisfy those series of the tests in the sense that they've secured the employment or secured an offer of employment for the employee, once that employee - if he rejects the offer then it just all falls away and that's the end of the story. Now in terms of my client's work, I mean all the evidence of Mr Waldrop, there's a series of emails there which reference email communication between himself and Kings, there was clearly discussion and debate about the rates, even the drivers themselves had given evidence about the fact that if it wasn't the right rate they weren't going to accept the job.

PN1311

Now there was only one witness that gave some evidence which in my respectful submission just can't be believed, that the whole - and that was Mr Overton - his whole deal was done in two phone calls. That's the extent of his evidence, and quite frankly no credit should be given to that when it's in relation to that issue. His evidence was that, you know, he's the only one that negotiated his own deal and, remarkably, in two phone calls everybody else ended up getting the same rate as he did, depending on their class. With respect, that's just not believable.

PN1312

The other important factor that I ask the Commission to consider is this, and I ask it to draw an inference, that the delegate Mr Elliott hasn't been called, nor has Mr Olsen. None of them have been called and there's a reason why they haven't been called and we say because their evidence wouldn't have assisted the respondent's case, and we invite the Commission to make that inference.

PN1313

THE DEPUTY PRESIDENT: Well, it seemed it wasn't only the wages. There was apparent reluctance of Kings to take a number of the employees initially.

PN1314

MR BARONI: Indeed, and that's why I was going to turn to the evidence because, you know, it's all well and good to say "Well, they interviewed me and there was nobody from DRW there", why would there be? I mean why would there be? We're not there to hold your hand. I mean I would think the new employer wants to satisfy itself of what they're buying, to be blunt, and there's nothing inherently wrong with that. I mean it's the way it is. So again it gets back to what the Full Court said and that is that what the employer has to do is create the circumstances whereby an offer can be made to the employees, and it did so.

PN1315

Mr Waldrop created those circumstances. He negotiated the rate. He kept on going back between the employees and DRW - sorry, to Kings. He made it clear to Kings that they wouldn't accept a lesser rate. They wanted to know what the performance was of these people. He provided information in relation to that. He encouraged them to come and talk to them. All this evidence is there and I don't trawl through it because I don't have the transcript and I don't want to point to everything he said, because I can't recall.

PN1316

But in my submission there is sufficient evidence there for Mr Waldrop, and even in cross‑examination nothing he said came out which was damaging to Mr Waldrop. In fact the opposite. Nothing was said that changed any of his evidence. There was a conscious effort, because of the expressions of the employees that they wanted to continue working with carting bricks, that's the course that he embarked on and he did everything possible to facilitate and secure an offer of employment for the employees, and that's exactly what happened.

PN1317

There was evidence from the employees, as I said before, that if the rate wasn't right they weren't going to accept it. Now if they genuinely didn't want to take that offer, all of them said they could have rejected it. Not one of them disputed this other than - and I'll come to it, some caveats about this. But none of them disputed the fact in cross‑examination that if they didn't accept the offer they would have still been working at DRW. One of them said I think from memory, and I can't remember who it was, that there was no offers. So what? There didn't have to be an offer because they haven't terminated you.

PN1318

So it gets back to this circular argument in some respects. There doesn't have to be an offer. If I'm not terminating you I don't have to do anything for you. At some point in time I will have to provide you meaningful work, of course, and it's at that point in time that there will become an issue about crystallising the issue for redundancies. So "I reject the offers of the new employer" for whatever reason, and they didn't have to take them. They didn't have to take them. So for whatever reason they weren't acceptable or I wanted to stay with DRW, and factually that - evidentiary(sic) that came out well and quite clearly, in my submission, that they all agreed that they could have stayed.

PN1319

So if hypothetically they had all rejected the offers of employment from Kings, they would have all had a job the very next day with DRW. What would have then happened after that is irrelevant, and it only would have become relevant if before any of this happened, this application was made, that the jobs that they were offered internally were not suitable. You know, they were riding pushbikes rather than driving prime movers or whatever the case is, all those sorts of factors which we're all aware about the principles that need to be had regard to. But none of that happened.

PN1320

They still had a job and it's only at that point in time, in my submission, that there became an issue about rejecting the internal offer, that then you'd get into a debate about whether suitable alternative employment or whatever the phrase is, suitable employment. Except that never happened so we don't need to worry about what offers there were because nobody terminated them. It would be a different proposition, I concede, if notice of termination was given - and there's some authority on this. I don't need to take you to it but there's authority on this - and then the employee decides to leave during that notice period because he has found another job absent any internal offer.

PN1321

I mean that's entirely appropriate and legitimate. So in other words "I've got my notice. I'm going to finish in four weeks. This bloke hasn't offered me anything. I don't like the job that's being offered from the new employer because it's generally substandard" and he finds another job. He's entitled to accept that job and still get paid redundancy, and there's authority on this. But this is not the circumstance - - -

PN1322

THE DEPUTY PRESIDENT: Well, I even have doubts about that.

PN1323

MR BARONI: But there is authority on it, and we can only deal with the authority we have.

PN1324

THE DEPUTY PRESIDENT: Yes.

PN1325

MR BARONI: And I have a similar doubt about that, your Honour, but I don't think we need to debate it here because it won't get us anywhere. But that's factually what the case is. Now can I also deal with another issue and can I hand - - -

PN1326

THE DEPUTY PRESIDENT: Well, I suppose Kings could have been a little tricky - and I'm not suggesting they were because there's no evidence they were - by inserting that probationary provision in. If people were doing the same job, the same routes, the same work, the same rates, why on earth would you need a - and you'd gone through a process of selection and recommendation from the past employer, why would you need to have a probationary period? But the reality was no one was - as I think I asked one of the witnesses.

PN1327

MR BARONI: Yes.

PN1328

THE DEPUTY PRESIDENT: No one was terminated during their probationary period. People did leave. I think one of the gentlemen did leave.

PN1329

MR BARONI: Yes. Yes, one or two did leave.

PN1330

THE DEPUTY PRESIDENT: Yes. But that's perhaps - for various reasons, and I sympathise very much with the reason that was expressed.

PN1331

MR BARONI: Yes.

PN1332

THE DEPUTY PRESIDENT: But that's not what I say the tricky option that was done here.

PN1333

MR BARONI: The answer may be that that's a standard course of practice. They have. I mean, you know, just because you're an employee with employment letters doesn't mean you're sophisticated or necessarily understand what you're doing. You know, we've seen so many cases about that, to be blunt. But again I think factually that it may be a circumstance in various cases where that may be an issue but it's not in this case because as we know two things have happened. By the effluxion of time that issue, if it had any relevance, became irrelevant because nobody suffered any detriment as a consequence of it.

PN1334

We concede again, and we have in the evidence, that tenure wasn't recognised but they were all paid out, and again I readily concede that in certain circumstances that is a factor that the Commission takes into account, but not in all circumstances, and in fact there has been decisions of this Commission recently by Commissioner Gregory whereby an employee with four years' standing had been offered a job, in all other respects it was suitable, the tenure wasn't recognised but notwithstanding Commissioner Gregory found that it was suitable employment. It is a factor but it's not fatal, we say. It's a culmination of factors that the Commission has to look at and again I stress that this only enlivens, this debate I'm having with your Honour only enlivens if your Honour is against me on that fundamental proposition there wasn't a termination in the first place. Can I just deal with another issue.

PN1335

THE DEPUTY PRESIDENT: Of course the employees do lose their tenure for the purposes of future redundancy pay, do they not?

PN1336

MR BARONI: Yes, I can't quibble with that, your Honour. I mean it is a factor, but what I'm saying is it's not a fatal factor. That of itself, all things being equal if that's the only issue we say that's not a fatal factor. It is a factor and the authorities make that clear that it is a factor but it's one of many factors, and it's that global approach that the Commission has adopted consistently in determining whether work is suitable, not just the reliance on one simple proposition. For example that all things being equal but these guys didn't get their recognition of tenure, then that's fatal. We say that's not the approach that the Commission has adopted in a vacuum.

PN1337

Can I just hand up one further document if I may, your Honour. I've shown this to Mr Warnes and he has no objection to it. It's simply a document that I've put together. It's not new. It's just simply based on the available evidence and it arises out of the statement of Mr Overton where he made certain allegations about the differences in his offer or what he says were detrimental to him, and he raised I think five issues in his evidence. One was about the paid RDO breaks, the other one was about the forklift allowance, which we've clearly made clear in this table, simply by comparison of the two relevant instruments that applied to him before and after, that he's simply wrong.

PN1338

He in effect gets an allowance either reasonably equal to what he was getting before or even better. Now there's no evidence about what he's getting and the fact that whether he gets it or not is again another irrelevant consideration. The fact is that the terms and conditions of the enterprise agreement provide for it and all I've done there is extrapolated a calculation to show that. Now yes, he doesn't get an RDO but he gets paid. He gets paid for the additional hours he works, and again I don't go through this, your Honour. It's simply a table that I've put together, simply by reference to the relevant clauses in both enterprise agreements which are before you, and we say this clearly shows that his understanding is just simply incorrect. I'm not sure that I need to tender that, your Honour.

PN1339

THE DEPUTY PRESIDENT: I will mark it.

PN1340

MR BARONI: Yes.

PN1341

THE DEPUTY PRESIDENT: Exhibit - - -

PN1342

MR BARONI: I've also prepared a table but I'm not sure that - I've spoken to my friend about it and he doesn't quibble - - -

PN1343

THE DEPUTY PRESIDENT: Just hang on a moment, Mr Baroni.

PN1344

MR BARONI: Sorry, your Honour.

PN1345

THE DEPUTY PRESIDENT: I'll mark it exhibit 5.

EXHIBIT #5 TABLE COMPARING RELEVANT CLAUSES IN BOTH ENTERPRISE AGREEMENTS

PN1346

MR BARONI: I've also prepared a table, if I can hand that up, and again my friend doesn't quibble with it. He makes no issue about it. It's simply a table created from the evidence that shows where the former employees were living, where they were working and where the new premises would have been had they stayed at DRW. Remember there was some discussion - well, there was evidence about that if they'd stayed with DRW they would no longer be working at Cecil Park but rather at Moorebank, and it simply extrapolates that from Google maps, your Honour, and again my friend doesn't quibble with it.

PN1347

THE DEPUTY PRESIDENT: I'll mark the document detailed "Distances between Cecil Park and Moorebank" - - -

PN1348

MR BARONI: And I think your associate is going to hate me, and I should have given this before he sat down again but, be that as it may, I apologise.

PN1349

THE DEPUTY PRESIDENT: - - - exhibit 6.

EXHIBIT #6 DOCUMENT TITLED "DISTANCES BETWEEN CECIL PARK AND MOOREBANK"

PN1350

THE DEPUTY PRESIDENT: And I'll mark the extract from the map exhibit 7.

EXHIBIT #7 EXTRACT FROM GOOGLE MAPS

PN1351

MR BARONI: Thank you, your Honour. Excuse me for one second, your Honour. Can I just hand up two further decisions. The first is a decision that's referred to in our submissions, your Honour, Glen Cameron Nominees, and the second decision simply for reference is the one that I referred to earlier which was a decision of Commissioner Gregory whereby, notwithstanding that tenure wasn't recognised, he still ordered that no - made a variation pursuant to section 120 that no redundancy was payable. So again I only hand it up for an example of where the Commission has exercised its discretion in that respect.

PN1352

The Cameron decision, again this was slightly different but it was a recent decision involving another transport company that I was involved in, and he found that no redundancy was payable. The facts were slightly different in this case and that is that the - and again it was a loss of contract and the incoming transport company didn't want any of the employees, notwithstanding some attempts made by Camerons to find them alternative work there, and in response to that Camerons basically said "Well, we have work for you here. We want you to stay".

PN1353

All of the employees refused those offers that were made and were terminated. I think that's the salient difference. But nonetheless Commissioner Roberts found that all the work was suitable and in those circumstances refused the union's - refused to make an order for redundancy. What is important in this case though however is that there was an argument that was run by the TWU, and I'm just trying to find the reference. I think if I can take your Honour to paragraph 147 at page 19. The Commissioner says this:

PN1354

In these proceedings: "The TWU submits that "in order for an employer to 'obtain other acceptable employment for the employee' the employment must: (a) exist; and (b) be required by the employer. On the evidence before the Commission, the TWU submits that it could not be satisfied that the positions which were offered to the redundant employees ...

PN1355

And so forth. So the union's position was that "Well, the jobs didn't really exist. Some of them didn't exist at the time that the contract was lost. They were created after, and in those circumstances redundancy is payable because the jobs weren't actually there". The Commissioner went on to find that that doesn't have to be the case. It's simply not the position that has been adopted by this Commission, and he says at paragraph 152, he says this:

PN1356

I have also concluded and find that the fact that not every alternative role was in existence at the time it was offered to a redundant employee does not act to de‑legitimise the offer. The willingness to create new positions to accommodate otherwise redundant employees certainly does not mean the created roles were not obtained by the Company. Each offered alternative role was within the basic skill set of each relevant employee, or could be attained. There was to be no reduction in pay for any employee and, indeed, some were to receive a pay rise. Additionally, the locations of new roles did not involve excessive additions to employees' travel times. Some employees raised the issue of new start and/or finish times as being why they could not accept an alternative position. This is understandable, but does not trigger redundancy payments. The Agreement itself does not guarantee that start and finish times will not be varied during an employee's employment.

PN1357

And then he goes on to express a view about that particular clause that I had engaged with your Honour about, about moving employees, and again this decision is relevant to the current circumstances for the third proposition. That had the employees not accepted the work with Kings they were still going to be employed by DRW and there were jobs there, and we never got to that point in time because of the tasks that had been embarked upon, as I said earlier in my submissions, by the employer based on the wishes of the employees.

PN1358

Had they rejected those roles with Kings then we would have found ourselves in the territory of determining what work was available and what the nature of that work was. But the fact that it didn't exist at the time, because some of the employees as you recall, your Honour, lamented about the fact that "Well, I was made no offer and that's why I took the other job". That, in my submission, is an irrelevant consideration because we never got to that point. We don't have to get to that point until we get to it. It's a slight rhetorical proposition but you get to the bridge when you cross - you only cross the bridge when you get to it and we never got there because they'd accepted jobs, and they all agreed that the jobs were acceptable and again I readily concede that it's not a matter for them or a matter for us. It's an objective assessment that the Commission makes about the work.

PN1359

So we say in all the circumstances - and this is where I (indistinct) - the first proposition is given the way that the evidence has fallen out, is that there is no redundancy. Section 119 is not triggered. It therefore follows that there can be no redundancy and the application is redundant, notwithstanding it's my application but that's the way it is.

PN1360

In the alternative if your Honour was to make a finding that there was a termination at the initiative of the employer we say that my client embarked on a course of action sufficiently engaged with the incoming service provider, that is Kings, to create an environment whereby offers would be made to the employees on terms and conditions which were suitable to the employees. Because ultimately one of the key sticking points for the employees was the rate of pay, and my client achieved parity on that. That's what the evidence shows. There's no disputing about that other than from one employee, Mr Overton, whose evidence was, to be blunt, laughable in that respect.

PN1361

The second then - the final proposition is that if again the Commission is against me on that then there were other jobs internally available. The nature of those jobs didn't have to be articulated because we never got to that point. The jobs were there, they still would have had a job with DRW and therefore again it kind of gets us back to the original starting point, there wouldn't have been a termination. And after that point there would have been a discussion about "Well, what are these jobs? Show me what the jobs are. What are you offering?" and it's at some point thereafter that the redundancy issue would have crystallised but not before. It can't crystallise before, absent a termination. It's as simple as that, your Honour. They are my submissions.

PN1362

THE DEPUTY PRESIDENT: Thank you.

PN1363

MR WARNES: Your Honour, I thought I'd first deal with this new proposition, and I put it that way because it is a new proposition that the application made by DRW is defunct before we even get off the ground, and it seems to be that that submission is put on the basis that there was no termination of the employment at the initiative of the employer, which is obviously required by section 119 of the Act. I just want to draw your Honour's attention to a couple of points. The first being the pay slips that were tendered and also attached to a couple of the respondent's statements.

PN1364

Now I agree with Mr Baroni that the fact that it says "termination pay" doesn't necessarily lead to a conclusion that there was a termination at the initiative of the employer, and I once again concede that this wasn't particularly put to the witnesses of the applicant. It was on my submission unclear at the time. The cross‑examination took place that this was going to be an issue agitated by the applicant. But I did want to draw your Honour's attention - and if we just - I've got one in front in me.

PN1365

I think it's marked exhibit C, your Honour. It's the pay slip of Mr Overton and your Honour will see - first of all you can see that about five rows down there is the term "termination pay" used. Our concessions obviously are what they are in that respect. But you'll see two rows up there's a payment for long service leave. Now long service leave under the Long Service Leave Act 1955 isn't payable when an employee resigns their employment. Long service leave is only payable when an employee is dismissed for a reason that is not serious misconduct.

PN1366

There are a couple of other instances where an employee resigns because of pressing domestic needs, I think it's phrased as. Unfortunately I don't have the Act here with me now, and I can get access to that fairly quickly. But what we say is that that is an inference or an inference can be drawn from that in and of itself that the employer deemed this or the end of employment as a termination of employment at its initiative. Once again, it would be an inference. There's no direct evidence of that. As I said there was no indication, on our submission, that this was going to be an issue until it became an issue midway through the proceedings.

PN1367

THE DEPUTY PRESIDENT: If you're right, do you want them to give it back?

PN1368

MR BARONI: Because that's what we do.

PN1369

MR WARNES: They won't, your Honour. If I'm right, I'm right and it will fall to the employer to do what they need to do in that respect. There are a lot of those types of things that could potentially come out of these proceedings. I just want to stay on that point though, your Honour. First of all the basis on which a redundancy takes place isn't based on the individual employee. Redundancy is based on the employee's role becoming redundant and that's well established, and what we say is that there's ample evidence before the Commission that the roles that these employees performed at Cecil Park was redundant, and I'll take your Honour to Mr Waldrop's statement in this respect. At paragraph 24 of Mr Waldrop's statement he states that:

PN1370

As a result of losing the PGH contract, DRW no longer required a number of roles to be filled at the Cecil Park site.

PN1371

Now that in itself says that there's a redundancy of these roles. The roles were all being made redundant. It could not be clearer that the roles as truck drivers that were previously required by DRW to be performed by the respondents in this case were redundant as of 28 February. Now another issue was raised as to the notice, a notice of termination of employment being provided. We do concede that there was no correspondence, formal correspondence, provided to the respondents saying "This is your notice of termination. On this date it will end".

PN1372

But the respondents were informed, and this is at paragraph 25 of Mr Waldrop's statement, and this was on 3 September 2014 - that the respondents' roles, so the roles that the respondents were performing, were no longer based at Cecil Park, and there's some confusion about this; no longer based at Cecil Park. So the respondents were told on 3 September, "As of the 28th of November we no longer need you to drive trucks under the PGH contract at Cecil Park". That's what they were told. Now whether or not the respondent deemed that as a notice that the employment was going to be terminated, we say that implicitly that's what it was. They were saying "We don't need the roles as of the 28th of November because we've lost the PGH contract".

PN1373

Now there is one further thing I would take your Honour to and that's the terms of the enterprise agreement which - and it might be clarified by Mr Baroni in his response to my submissions but my understanding is that there's no challenge any more to the fact that this enterprise agreement applied to the employees and that there was a transfer and this is a transferable instrument. That's what Mr Baroni put at the beginning of these proceedings and that eliminated the need for much cross‑examination that would have had to have occurred, and for the - well, Mr Baroni didn't cross‑examine on that either.

PN1374

THE DEPUTY PRESIDENT: Well, doesn't that require a formal process to recognise transferring employees?

PN1375

MR WARNES: No, it doesn't, your Honour.

PN1376

THE DEPUTY PRESIDENT: No? It's just automatic is it?

PN1377

MR WARNES: Yes, there is a mechanism for the Commission to make orders to have different instruments apply and that's what I think your Honour is thinking of.

PN1378

THE DEPUTY PRESIDENT: Yes.

PN1379

MR WARNES: In relation to 318.

PN1380

THE DEPUTY PRESIDENT: Yes.

PN1381

MR WARNES: But if a transfer of business occurs and the - - -

PN1382

THE DEPUTY PRESIDENT: Perhaps we should see if the concession is made that the agreement was applicable?

PN1383

MR WARNES: Okay, that might be useful at this stage.

PN1384

MR BARONI: As I understand the legislation, your Honour, it's in circumstances whereby one of the circumstances that needs to be satisfied is the acquisition or transfer of assets or beneficial use of some assets. There are some other requirements but all you need to do is satisfy one of those, and it's certainly my understanding that when Wettenhalls was in administration, notwithstanding it was in administration it still existed as an entity, and there was an arrangement between the entity in administration and my client for the purchase - and this is in the evidence of Mr Milnes I think - the acquisition of some assets.

PN1385

If not, at least the beneficial use of the assets that were being used by Wettenhalls at the time and clearly employees went across. So with those two combinations one could hardly - and I'll come to why there was an objection on my part in a moment, but in those circumstances it could hardly be said that there was no transfer of business in the context of the legislation. My original objection to the transfer was because the organisation was in administration, so it was quite a separate issue and it really went to the legal status of that organisation. But I could find no authority that would support my proposition that, notwithstanding it was in administration, that it wouldn't transfer. Because the entity at the end of the day still exists. It's just being managed by an administrator. I mean that's the reality of it. The administrator simply stands on the - - -

PN1386

THE DEPUTY PRESIDENT: But doesn't it amount to what terms and conditions were applied to the employees who transferred?

PN1387

MR BARONI: Not if the instrument transfers by virtue of the legislation.

PN1388

THE DEPUTY PRESIDENT: Well, that's what I'm saying. What was being applied by your client post the transfer? This agreement, wasn't it?

PN1389

MR BARONI: Yes.

PN1390

THE DEPUTY PRESIDENT: Doesn't that end the matter?

PN1391

MR BARONI: Yes and no. Well, we've made that concession. We've made that concession. We've made the concession on the basis of the legislation. If the agreement had transferred, for the sake of a better word, not by virtue of the legislation, by virtue of incorporation into the terms and conditions of the employment, so by a common law arrangement, it might be a different issue about what this Commission could or couldn't do in relation to section 119 or 120. It might be a completely different issue, but we're not there. I mean we don't get into that debate. What we have here is we say - and we think we've appropriately made a concession, rightly or wrongly it's the appropriate concession to make - that there was the beneficial use or purchase or acquisition of some assets. Employees went across. It meets the test.

PN1392

THE DEPUTY PRESIDENT: Thank you.

PN1393

MR WARNES: So I think from that long-winded response the answer was yes, your Honour, to whether they concede to that. The agreement that I refer to that has now been conceded applied to the employees applies only - and this is at clause 3.3:

PN1394

It only applies to the operation of the company relating to the transportation of materials associated with the PGH Bricks & Pavers contract.

PN1395

Which is the contract that we're talking about. So the evidence given by the respondents in this case was that they've all worked at the PGH contract for an extended amount of time. I think Mr Richards is the only one who came on to the PGH contract while it was run by Wettenhalls, which was the Amenstros & Son Pty Ltd, the company that went into administration that was taken over by DRW. They were all in that job for some time. It can reasonably be concluded by the Commission that these employees' roles was to drive trucks at the Cecil Park site, and from that their job, their role, was redundant and it became redundant on 28 November and therefore that role was on that day, due to the employer not needing it to be performed by anyone any more, that role was terminated.

PN1396

THE DEPUTY PRESIDENT: Doesn't it really amount to whether it was a genuine redundancy, and I don't mean that in a pejorative sense but in a statutory sense, when one looks at the definition of genuine redundancy and indeed what that clause envisages about alternative employment, clause 37?

PN1397

MR WARNES: Are you referring, your Honour, to genuine redundancy within the context of - - -

PN1398

THE DEPUTY PRESIDENT: An unfair dismissal, yes.

PN1399

MR WARNES: Was it part 2(4) of the Act - unfair dismissal.

PN1400

In the current proceeding, that question isn't before the Commission. We say that any consideration about the genuineness of the redundancy is relevant. Obviously if an employee were to bring an unfair dismissal application and the employer were to claim the dismissal was a redundancy, the employee could say, well, it's not a genuine redundancy and in those cases - I'm shooting from the hip at the moment, your Honour. You would appreciate that.

PN1401

The remedy in that case if the dismissal was found not to be a genuine redundancy, would be generally to provide the period of consultation which would have made the redundancy genuine in the first place. Now, obviously there are circumstances where the Commission may conclude that they have just dismissed an employee and put somebody else in that role, and therefore it's not a redundancy at all, but if we're just going to, well, the common case that comes from that section, then it doesn't really apply to these circumstances.

PN1402

This is, as I said before, a section 119 or 120 application, so whether the redundancy occurred, whether the roles that the employees were in were redundant, is really the question that I think Mr Baroni is asking you to determine in this respect. On our submission, the roles of the employees were undoubtedly redundant. I don't think that can be disputed by the applicant. Really what the applicant is asking you to conclude is whether or not the employees themselves were redundant, which, in our submission, is the wrong test. It's not the employees who are redundant. That's just simply not the case.

PN1403

It would be open to the applicant to bring a case that the employees were somehow just hired by DRW to do whatever DRW wanted the employees to do. In our submission, that's not the case. There's no evidence of that. The employees are clearly hired for a particular purpose. That's borne out in the evidence of Mr Waldrop, and I think Mr Milnes, when he says there were 12 employees employed specifically to do this role at Cecil Park.

PN1404

As I said, there are two different circumstances there, but in this case we're only dealing with a circumstance where the employees' roles were to drive trucks at Cecil Park. They weren't open truck drivers that could just be shoved anywhere. Mr Baroni made a submission about the respondent's case in not calling Mr Olsen and Mr Elliott, and invited the Commission to make a negative inference based on that fact. It remains substantially unclear why that is.

PN1405

MR BARONI: James v Dunkel.

PN1406

MR WARNES: I understand the authority. It remains unclear why that is; what negative evidence could have been given by Mr Olsen and Mr Elliott. Mr Olsen and Mr Elliott, I think on the evidence of Mr Waldrop, met with Mr Waldrop to discuss what was going to happen in the future. We don't intend to make any submissions about what those meetings contained. On our submissions, they're not really important. It's open to Mr Baroni to make further submissions about that, but any negative inference can be drawn by us not calling Mr Olsen and Mr Elliott is just not there, on our submission.

PN1407

I'll just deal with a couple more things before I get into my substantive submissions, your Honour. Exhibit 5, which is the table handed up by Mr Baroni, I just want to make a couple of submissions on that. Firstly, to the extent that this document is intended to discredit Mr Overton's evidence, it doesn't do that. Mr Overton gave evidence of what he believed were the disadvantages of going to Kings. There was no challenge made to the legitimacy of that belief.

PN1408

In fact if you look carefully at this table, the first row, clause 24, paid lunch break with RTA break taken in conjunction, it actually differs from clause 19, so there is a difference there between the two entitlements. I do concede that the two - forklift allowance/Hiab allowance are substantially similar. They are framed in very different terms, so it's easy to understand why somebody would confuse the fact that they're no longer receiving a 34‑dollar a week forklift allowance. Now they're receiving .46 per cent of - I assume is the base hourly rate or just the amount that they earn per week. It's easy for the Commission to conclude why that would be somewhat confusing.

PN1409

The rostered days off, which is the next row down, it has been put in this table, clause 19.5, which is the clause for the entitlement to RDOs. He did lose RDOs. I mean, from that table it's a fact. 40 hours to 38 hours; you can see why Mr Overton would have included that in his statement. The amount paid, that's not even in paragraph 20 of Mr Overton's statement, so I'm not quite sure why that was included.

PN1410

THE DEPUTY PRESIDENT: Well, on one view, Mr Warnes, it's irrelevant whether there was detriment or not, because the employees had a choice. They could either go to Kings with what you're obviously saying here are slightly lesser beneficial conditions or they could stay at DRW. They chose to go to Kings.

PN1411

MR WARNES: We don't concede that they could stay at DRW, your Honour. I'll come to that.

PN1412

THE DEPUTY PRESIDENT: They all gave evidence that they could. How can you dispute that?

PN1413

MR WARNES: That evidence was somewhat confused, your Honour.

PN1414

THE DEPUTY PRESIDENT: Well, I didn't see it as confusing, with respect. I thought all your witnesses were very clear.

PN1415

MR WARNES: I accept that, your Honour, but there are a couple of points that I'll make later about that. First of all, the fact that if they hadn't gone to Kings, all of them answered, yes, they mostly would have stayed at DRW. That's fine, but all witnesses I think either in their primary statement or in re‑examination by me, stated that they were never talked to about staying at DRW. They were never offered any jobs staying at DRW.

PN1416

THE DEPUTY PRESIDENT: They didn't get to the point. It's the bridge analogy.

PN1417

MR WARNES: That's fine. On my submission, that means we never get there. If we never get there, then it's not something the Commission needs to take into account, because if the situation - as you've rightly put - is that the employees - - -

PN1418

THE DEPUTY PRESIDENT: But none of them, Mr Warnes, said, "I'm a little reluctant to go to Kings. Can you tell me what might be available?"

PN1419

MR WARNES: No, they did, your Honour. I'd disagree with that.

PN1420

THE DEPUTY PRESIDENT: Do you? All right.

PN1421

MR WARNES: There were two witnesses who wished to stay at DRW and they did actually talk to either Mr Waldrop or Mr Milnes. One of those witnesses was a Mr Richards.

PN1422

THE DEPUTY PRESIDENT: But they ultimately accepted offers at Kings.

PN1423

MR WARNES: Yes.

PN1424

THE DEPUTY PRESIDENT: Without pursuing it further. The thrust of the witnesses' evidence was that they were waiting for offers to be made to them.

PN1425

MR WARNES: Yes. We don't back away from that.

PN1426

THE DEPUTY PRESIDENT: Why would the company do that when it was negotiating with Kings for them to transfer on the same wages and conditions, and in preference to the work that they like doing? Why would they go to the trouble of doing that? In fact I think they did go to the trouble of keeping casuals on in the event that that might happen.

PN1427

MR WARNES: That may well be the case and we're not in a position to challenge whether the company kept casuals on or didn't keep casuals on. We're just not in a position to do that, but there is evidence that Mr Richards called Mr Milnes - and this is at paragraph 8 of exhibit D - and said, "Is there anything else on offer at DRW? I am concerned about losing my long service leave," to which Mr Milnes said, "Not really much. There might be some liner work coming up, but it will be afternoon shift or night shift. I'll come back to you about any work that I find." That was a common theme. There was another - - -

PN1428

THE DEPUTY PRESIDENT: That evidence was challenged.

PN1429

MR WARNES: It was.

PN1430

THE DEPUTY PRESIDENT: In fact challenged to the point where it said that conversation was never had, I think,. Wasn't that right?

PN1431

MR WARNES: But Mr Richards didn't accept that. Mr Richards said, no, that didn't occur. He never said that.

PN1432

THE DEPUTY PRESIDENT: Yes.

PN1433

MR WARNES: So we say that that conversation did occur. It can be challenged as much as Mr Baroni likes.

PN1434

THE DEPUTY PRESIDENT: Well, in the end if it's decisive - and I'm not sure that it is - I would have to decide who to believe.

PN1435

MR WARNES: Yes.

PN1436

THE DEPUTY PRESIDENT: You're putting it as a fact.

PN1437

MR WARNES: Yes, and that's all I can do, your Honour. I don't know which way you're going to go, but on the evidence on our submission, Mr Richards did say that to Mr Milnes. There was another employee and I would like to find it. I think it's Mr Mannix, who contacted Mr Waldrop. That's paragraph 18 of exhibit E. No, that's not right. 22, is Mr Mannix. Once again, that was challenged and it will be up to your Honour to assess the witness evidence.

PN1438

There is evidence that the employees who were to become redundant, some of them wanted to stay on with DRW, some of them asked about the jobs at DRW and there was never any offers forthcoming. On our submission, there has to be offers. DRW can't just sit on his hands. There were questions asked by Mr Baroni, "What did you do to pursue this?" In our submission, it's not up to the employees to pursue it. If there are jobs there, there has to be an offer made. There just has to be.

PN1439

It can't just be, "Oh, we might have some jobs somewhere else in the business and we'll get in touch with you about it," then never get in touch with your employees about it and think that that constitutes some sort of alternative employment. On that point, I would take your Honour to the decision by Roberts C that Mr Baroni took you to. This is a recent decision that Mr Baroni and I were involved in. There was one important distinction to be made and that's at paragraph 41 of his decision. It's mostly elsewhere, but this is the first thing I could find at short notice.

PN1440

In that case, there were clear and concise offers made with job descriptions put to the employees and said, "This is what you are going to be doing.

PN1441

MR BARONI: You still weren't happy.

PN1442

MR WARNES: As Mr Baroni rightly puts, I still wasn't happy. He's right, but in that case there were clear jobs put. In that case they were truck driving jobs at Yennora, I believe it was, and there was a position description put; "This is what you will be doing." The same happened it the CAE case that Mr Baroni said. At paragraph 3, the Vice President has stated:

PN1443

CAE offered two of the employees ongoing employment at IOS Operations on the same terms and conditions of employment.

PN1444

Paragraph 4:

PN1445

The employees considered that the offers to work with Boeing were superior in a number of respects and accepted the Boeing offers. They ceased work and commenced employment on -

PN1446

particular dates.

PN1447

THE DEPUTY PRESIDENT: Well, if you like, Mr Warnes, if it wasn't firm offers, it was certainly floating around that the bread contract was available, because that was the very reason why people didn't want to do it, because they didn't want to cart bread.

PN1448

MR WARNES: With respect, I don't think that's right either. It may have been the case with a couple of the respondents, but Mr Richards had done it before. That evidence wasn't challenged. He had done the Goodman Fielder work before. That's where he came from. He said in his witness statement that he would have been more than happy to go back there.

PN1449

THE DEPUTY PRESIDENT: How does that help your case? He chose not to.

PN1450

MR WARNES: But that is our case. He didn't choose not to, because he was never given the opportunity to go there.

PN1451

THE DEPUTY PRESIDENT: Mr Warnes, I made a very clear note of the evidence about all of this. They all agreed that if they had not accepted work with Kings, they would have continued the very next day at DRW.

PN1452

MR WARNES: Yes. I accept that.

PN1453

THE DEPUTY PRESIDENT: They all understood that to be the position.

PN1454

MR WARNES: I accept that that was the evidence, your Honour. I do accept that, but what would they have been doing at DRW. Were they going to go and do office work, were they?

PN1455

THE DEPUTY PRESIDENT: Then it was up to DRW to give them firm offers. They didn't lose their job. There was no loss of job.

PN1456

MR WARNES: But there was, your Honour. There was a loss of job. That's where we need to look at what their job was. It's not a matter of DRW continuing employment on some basis upon which we don't know. That's just not the position. The job was lost at Cecil Park. There was no job there to do any more. The employees' employment was terminated by virtue of the fact that the job wasn't required to be done any more.

PN1457

THE DEPUTY PRESIDENT: I know that's your earlier submission and I'll address that in due course.

PN1458

MR WARNES: Now, I wanted to take your Honour to the position of DRW, or the contention of DRW, that it obtained employment with Kings for the redundant employees. In terms of making a summary of the evidence given in these proceedings, the actions taken by DRW we say can be confined to these actions. There was some negotiation of rates that will be payable under offers made by Kings to the respondents.

PN1459

Mr Waldrop conceded in cross‑examination that this was essentially negotiations of a bargaining representative rather than in any capacity that he had or any bargaining power that he had as a manager of DRW. We say that negotiation of rates was actually - the party who was actually negotiating was the group of drivers. It wasn't in fact Mr Waldrop. We say that that became clear in his cross‑examination, that Mr Waldrop was acting essentially as a conduit between the drivers and Kings.

PN1460

I think Mr Baroni even put this in his submissions, that he was a go‑between. Mr Waldrop gave that evidence, as well, whereas he was negotiating. He was the face. That's fine, but the actual party who was negotiating were the drivers. That's why the negotiations got pushed so far. Mr Waldrop put that in his evidence, that the drivers were acting as a collective. They were either going to accept employment or refuse employment as a collective.

PN1461

The other action taken by DRW was that they arranged meetings to take place between Kings and the drivers. They consented to route rides being conducted with the respondents and a couple of other individual drivers who aren't subject to this application. They also provided feedback in the forms of - it was one of the tables attached to Mr Waldrop's statement; just a brief summation of how that driver was in terms of customer service and things like that.

PN1462

I'm just bringing that up now. It's annexure D to Mr Waldrop's statement, exhibit 1. He has made comments such as, for example:

PN1463

Mr Overton, very proficient operator. Good customer service skills and adaptable. No at fault safety incidents or complaints.

PN1464

Comments of that nature were made and they were provided to Kings, to assist Kings in its assessment of whether or not to take the drivers. Now, that is, I think, in nutshell what DRW did in order to attempt to secure employment for the respondents. Turning now to the actions of the drivers to secure further employment with Kings, we say each driver collectively engaged in rates negotiations through Mr Waldrop, but as a party collectively engaged in those rates discussions.

PN1465

There is evidence that at one point Mr Fabre of Kings contacted the drivers directly with those rates, essentially saying, "This is what you will be paid." Each driver had to attend an interview style meeting with Kings. Each driver gave evidence about that and that evidence went unchallenged. Some drivers were required to participate in route rides to demonstrate their skills and attributes in terms of performing work under the specific contract.

PN1466

Now, obviously the test is whether or not DRW, the applicant in these proceedings, obtained the employment for the drivers. That word "obtained" has been subject to much consideration by this Commission and other courts. I'd just like to hand up - you have already got FBIS, so I will leave that one aside - two decisions. The first decision I'll take you to is the matter of - it's on the AustLII letterhead and I apologise for the format, but it's the matter of Derole Nominees. This is a much cited decision in terms of the jurisdiction of this Commission under section 120.

PN1467

I'll take you to page 6 of the decision; the first full paragraph on that page. In considering what the word "obtain" means, the Full Bench in this decision stated that:

PN1468

It follows that "obtain" must be given some lesser meaning. The Shorter Oxford Dictionary, third edition revised, provides as its relevant meaning the definition of "obtain" as to "procure or gain as a result of purpose and effort." It seems to us that meaning is of assistance here. That is, the employer by purpose and effort may establish an opportunity which suits the employee and which crystallises as alternative employment of an acceptable kind.

PN1469

Then further down the page, the second last paragraph and the last sentence of that paragraph:

PN1470

The employer must be a strong, moving force towards the creation of the available opportunity.

PN1471

We will come back to that decision later, your Honour. The second case I want to take your Honour to in terms of the word "obtained" is a recent decision by Roe C titled Serco Sodexo Defence Services Pty Ltd [2015] FWC 641. This was a decision in respect of quite a large government defence contract that was lost by Serco Sodexo Defence Services and picked up by a number of incoming contractors. This case involved the loss of around 3000 jobs.

PN1472

The Commissioner embarked upon a task in this case to determine whether Serco Sodexo Defence Services had obtained employment for the employees. Your Honour would know that it's probably quite an onerous task to determine whether with all these different employees and different incoming contracts and different scenarios - what a big task that was.

PN1473

At paragraph 13, the Commissioner has made multiple observations about what it would mean or what it would take for an employer, an outgoing contractor in this case and the same as in the Serco Sodexo case, to have obtained employment for its outgoing employees. The Commissioner, at paragraph 13, said:

PN1474

Earlier section 120 cases have shown that there are a variety of ways in which an employer might demonstrate that they have obtained employment. For example, the outgoing employer approaches the incoming employer and secures an agreement to employ a particular employee without the need for a selection process -

PN1475

and that's important, the need for a selection process -

PN1476

or the outgoing employer provides information about the job opportunity which the employee would not otherwise have obtained; or the outgoing employer provides assistance to an employee and/or reaches agreement with the incoming employer which causes the job offer to be made or was a strong moving force towards the job offer. These examples are not exhaustive and whether or not they meet the legislative test depends upon the circumstances.

PN1477

Then the Commissioner goes further in relation to what I highlighted in paragraph 13, which is without the need for a selection process. He goes further and makes some more observations in paragraph 15, where he says:

PN1478

The situation where applicants have to compete for a job offer must be distinguished from situations where direct appointment occurs. Where an employer decides to employ an employee(s) without a selection process, then it might be said that the decision to not have a selection process is the decision which obtains the employment. If the actions of the outgoing employer led to the decision not to have a selection process, this may be sufficient to establish that the outgoing employer was a strong moving force behind the offer of employment for all the employees.

PN1479

He then makes some further observations in paragraph 16 in relation to interviews and the like that an incoming contractor may have with employees of the outgoing contractor. Before we leave Roe C's decision, I'll just take your Honour over to paragraph 17. It's the second sentence in. The Commissioner has posed a couple of questions and it's the second sentence in. It starts:

PN1480

In a situation where many of the employees of the outgoing contractor are attractive to the incoming contractor regardless of the actions of the outgoing contractor, it might be found that the actions of the outgoing contractor may have marginally increased the chances of each of the employees getting a job offer. If this were the case, then the actions are unlikely to be a strong moving force behind each of those employees getting a job offer.

PN1481

The Roe C surmises what he said in paragraph 18, where he articulates the test as he saw it in this case. This is two paragraphs into paragraph 18:

PN1482

The test is not what would have happened but for the actions of the employer. The test is about the relationship between the actions of the outgoing employer and the job offer being made. In the circumstances of this case, it is necessary and relevant to examine what were the moving forces behind the incoming contractor making a job offer and to evaluate the importance of the outgoing contractor's actions in that context.

PN1483

Of course Mr Baroni has taken your Honour to the Federal Court decision in FBIS, which is the most recent Federal Court authority on what "obtains employment" is. I made some submissions in my outline of submissions which I should have indicated earlier we obviously rely upon, as well, as to what the effect of that decision is on applications of this kind.

PN1484

THE DEPUTY PRESIDENT: Well, apart from being critical of what Mr Waldrop did, which I must say at least two of your members said he did the majority of the work, what do you say he didn't do that he should have done which would have met the test?

PN1485

MR WARNES: Your Honour, I'm going off what happened in the Serco Sodexo case. Essentially it's not what Mr Waldrop should have done. Mr Waldrop can probably rise above any criticism and this is a submission that I'll make in a second. By the time Mr Waldrop got the task of getting his soon to be ex‑employees jobs, Kings had already decided that it wanted to take on the drivers. Mr Waldrop said that in cross‑examination quite clearly.

PN1486

MR BARONI: Not all of them.

PN1487

MR WARNES: Well, no, he did say that and then it came out later that there was perhaps only six out of the 10, but that goes further to what Mr Waldrop could have perhaps done. It is difficult to articulate, because Mr Waldrop could have been the greatest human being in the world, done everything he possibly could have and still not have reached that threshold of "obtain", because the threshold of obtaining employment is quite high. That was continued by the Full Federal Court in FBIS. It's quite high.

PN1488

The employer has to be - and it's debatable as to whether there has been a movement away from this now, but it has to be one of the at least moving forces behind that job opportunity coming into existence. If, for example, the incoming employer - which is Kings in this case - needed the employees, was attracted to their skills and attributes and had the ability to employ the employees, then there is not much that Mr Waldrop could have done to reach the threshold of "obtained". There simply isn't.

PN1489

Facilitating meetings is just - it's not enough. There is authority about that, as I'm sure Mr Baroni will acknowledge. You can't simply facilitate meetings. I think Mr Baroni put it as "open the door". There were some rates negotiations, we accept that, and that was obviously a credit to Mr Waldrop. What power he held to make Kings change its position is arguable. How Mr Waldrop could have influenced the decision‑making of Kings could only, on our submission - - -

PN1490

THE DEPUTY PRESIDENT: How would we ever know unless Kings were here to say?

PN1491

MR WARNES: That's exactly right, your Honour.

PN1492

THE DEPUTY PRESIDENT: And they are never, in situations such as this, called into question.

PN1493

MR WARNES: And to be frank it's not particularly the actions of Kings that is in question really, it's the actions of - - -

PN1494

THE DEPUTY PRESIDENT: No, you just raised it in the context of what Kings had in mind in respect to the employees. We're not looking at what Kings had in mind, we're looking at what actions were taken by Mr Waldrop.

PN1495

MR WARNES: But there is evidence of what Kings had in mind because Mr Waldrop gave evidence to that effect in cross‑examination that Kings wanted - when Mr Waldrop first approached Kings, Kings said to him that it wanted to take on the employees that existed on the contract.

PN1496

THE DEPUTY PRESIDENT: Yes, but the linchpin was the rates.

PN1497

MR WARNES: The linchpin perhaps for the employees, yes.

PN1498

THE DEPUTY PRESIDENT: Well, that's who we're talking about.

PN1499

MR WARNES: Yes. Yes so - - -

PN1500

THE DEPUTY PRESIDENT: Here was an employer that was quite unhappy no doubt about losing the contract. It could have said - and I won't say what I was going to say.

PN1501

MR WARNES: I can imagine.

PN1502

THE DEPUTY PRESIDENT: But you know what I might have thought in the same position "You sort yourselves out" if we put it nicely. But it didn't do that, on your own admission and indeed on the evidence of your members.

PN1503

MR WARNES: Yes.

PN1504

THE DEPUTY PRESIDENT: At least a few of them that recognised that he did the majority of the work.

PN1505

MR WARNES: He did, and the reason he did that, on our submission, and this is supported by some of the emails, is because they wanted to avoid the obligation to pay redundancy, and that's fine. That's fine, but DRW still - - -

PN1506

THE DEPUTY PRESIDENT: I think it goes deeper than that. It's really or not whether people are made redundant. You see, I have a very old-fashioned view that redundancy is not about stopping one job on a Friday and starting another one on a Monday where it has already been pre-arranged, and copping a big redundancy package along the way.

PN1507

MR WARNES: I understand that, your Honour, and I will come to that. I will come to the reason for a redundancy package. It's still nevertheless we're all subject to the statutory tests that is in section 120 and it's a jurisdictional question that needs to be answered before the Commission has any power to do anything with an obligation to pay redundancy. So the Commission has to find that there was - on the relevant evidence and circumstances before it that DRW were the ones who obtained the employment for the employees.

PN1508

I understand what your Honour is saying and there are other factors that have to be taken into account in terms of what your Honour is saying, and I understand where your Honour is coming from when you say "Oh, they stopped work on the 28th of November and started on the 1st of December. Why should they get this big redundancy package?" and that will go to my later alternative submissions which is in relation to if you do find that DRW obtained the employment, how much should the redundancy be reduced to.

PN1509

Because on our submissions it can't be nil because several of these employees lost a significant - and I'm talking very significant length of service. That stopped, and as a result of losing that they've stopped accumulating long service leave. They've lost their right to a redundancy if Kings make them redundant in a year's time. They'll get two years instead of 30 years.

PN1510

THE DEPUTY PRESIDENT: Yes, I readily understand that argument.

PN1511

MR WARNES: And that sort of situation is something that redundancy payments - as I know your Honour is very well versed in the concept surrounding redundancy given your 2007 decision in relation to when you were in the State Commission. But the purpose of redundancy is to assist employees or to compensate employees for those sorts of losses. It's not specifically to compensate the employee while they go off and look for another job. That's what the notice period is for, on our submission. Redundancy is to compensate for those types of losses that I've just brought up, and as I said that will be our alternative submission if the Commission finds that DRW have reached the level where it can be said that they obtained employment.

PN1512

THE DEPUTY PRESIDENT: But if you're right about that argument, and by the way I'm not unattracted to the arguments about people losing entitlements to redundancy pay, there would never be a provision about acceptable alternative employment because that's what might happen.

PN1513

MR WARNES: Well, no, there are references in the decisions that I will come to. That all goes to whether the new position is acceptable because in many, many, many circumstances a transfer - not a transfer, sorry, the new employer does recognise the service of the old employer.

PN1514

THE DEPUTY PRESIDENT: That's right, but this comes back to the other argument of choice, and I know what you say about it and you don't have to repeat it, about offers of employment. But the evidence was very clear about what the employees thought their options were.

PN1515

MR WARNES: Yes, and I do have to put it - - -

PN1516

THE DEPUTY PRESIDENT: In which case their service would have continued, they would have continued to accrue their long service leave and their service for the purposes of future redundancy. They chose not to do that.

PN1517

MR WARNES: And I do understand where your Honour's coming from in that respect, but there is also the evidence - and I've said this before. I understand that your Honour will probably get frustrated with me saying this but there is the evidence that the employees even though they may have thought that, yes the employment with DRW will continue, which I admit there's no reason why your Honour couldn't accept those submissions in cross‑examination, but what was the job continuing with DRW? It has to be taken into account because there is just simply no offer made.

PN1518

There simply was no offer made. There was no - in the multiple meetings that they had - and I understand the explanation for this. The explanation is that "Oh, they all said they wanted to go to Kings" even though we don't accept that for a couple of them anyway, Mr Richards being one of them. There was no meetings had saying "Hey, are you sure you guys don't want to stay at DRW?" I mean DRW knew who these employees were. They knew how well they worked. Mr Waldrop set out a table saying how great they all were. Why would DRW not do that, especially in circumstances where it knew that a couple of them wanted to stay, and that obviously goes to whose evidence your Honour accepts in the long run.

PN1519

THE DEPUTY PRESIDENT: In Mr Overton's case he was so keen to go he was negotiating his own rate.

PN1520

MR WARNES: And that comes to the obtained question. If Mr Overton was negotiating his own rate - - -

PN1521

THE DEPUTY PRESIDENT: But you're assuming I'm accepting that evidence.

PN1522

MR WARNES: And on our submission you should accept that evidence because it wasn't - I mean Mr Baroni did put to Mr Overton that - - -

PN1523

THE DEPUTY PRESIDENT: To the extent that it meant obtaining the outcome. I'm not saying that what happened didn't happen.

PN1524

MR WARNES: Yes. No, no, I understand that. I understand, your Honour. But being there were many instances like that and I'll come to that now. We say from what Mr Waldrop said, and I don't put it any higher than this. As you said, Kings aren't here to give evidence about what its thoughts were. But Mr Waldrop said DRW did not contribute at all to the job being initially available. We say yes, in the end the job, the overall job package which DRW negotiated with Kings, the rates, et cetera et cetera, okay they were instrumental in that. But when the job originally came on, a truck driver at Cecil Park, that was there before DRW got involved at all.

PN1525

We say that what got the drivers employment was their experience, their skills, and their experience and skills were tested by Kings and this goes to what Commissioner Roe said. The experience and skills were tested by Kings when Kings performed one on one interviews which each of the respondents said they attended, and it wasn't challenged. Kings interviewed them directly to determine whether or not it wanted to take them on, which once again it has to be an alternative because Mr Waldrop said Kings already wanted them.

PN1526

So there is some conflicting evidence here, but either way we say that it goes to the question of whether or not DRW obtained the employment. The drivers got their jobs because of experience and skills which Kings tested through the interviews and the route drives, and also the collectivism demonstrated by the respondents when they were conversing with both Mick Fabre and Mr Waldrop in getting the rates that they would be offered in the end up to parity. So we say that essentially what DRW did in this process - and all that can really be sensibly argued by DRW is that Mr Waldrop assisted in getting the rates from what Kings initially offered up to parity with what DRW was paying in the first place.

PN1527

We say that the other stuff falls away. That's facilitation. That's facilitation(sic). Now we say that the negotiations doesn't get DRW to the point of having obtained the work for these reasons. We say that Mr Waldrop simply acted as a conduit, and I make no criticism of Mr Waldrop for doing that. We say that's probably all he could have done. I don't think DRW would have any clout with Kings. Often there's not a lot of love lost between incoming and outgoing contractors. We say that the real power in negotiating the rates came from the drivers, and I suppose your Honour would accept that coming from my side of the Bar table.

PN1528

But we say that the reason that the drivers got their rates or the rates came to the level on which Kings eventually offered them was because of the way that the drivers conducted themselves. Once again, facilitation. I think your Honour knows my position in relation to the other employment supposedly on the table from DRW. We say that the evidence was quite vague in relation to what those roles were in that your Honour could simply not find on the evidence that there was ever a job offered to any of the employees, and we say that that's important. We say that it's important that the jobs that DRW says it had needed to be communicated to the respondents.

PN1529

They can't simply rely on the fact that there might have been the jobs there. There has to be some communication in that respect. Now in terms of acceptability we touched on it a second ago but if the Commission does determine that DRW's actions in this case did amount to them being the ones, whether you call it a strong moving force or whether them being the ones who acquired or got the employment for the respondents, then we say that the Commission needs to take into account in determining what the redundancy payment be reduced to, the Commission needs to take into account the fact that none of the employees' entitlements transferred.

PN1530

There's evidence in each of the respondent's, apart from I think Mr Richards and Mr Mannix's statements, that each of them had particularly long periods of service. Even Mr Richards had I think four and a half years' service so you are starting to get towards the long service leave and starting to move up the redundancy scale. Each respondent had significant, significant, periods of service which in previous change of contract situations transferred over, and make no mistake, your Honour, it happens quite a lot at this site, at the PGH Brick & Paver site.

PN1531

There are lots of transfers of this nature, and on each occasion it's transferred over including from Wettenhalls to DRW. So there was no transfer of entitlements. So that's the first thing about the job, and that was considered in both Derole and FBIS as well, that's on page 7 for Derole. The Full Bench considered whether a loss of continuity of employment with loss of accumulated credits was relevant. In the end it didn't have to determine it but it has been held in previous decisions that it is a - and I think Mr Baroni concedes this - it is a relevant consideration.

PN1532

The first part's the non-transfer of entitlement which would of course accumulate at a different rate if continuity of service was acknowledged. Now the non-continuity of services becomes stark when you look at the fact that - and it was given by, I believe it was Mr Dyer that when he began - and this goes for all the respondents - when they began at Kings they were subject to a six month probationary period. Now that obviously didn't crystallise into any terminations or anything like that, and that's fine, but what it does show and it makes the point particularly obvious is that they are starting again. They're starting all over again, even though they're doing the same work. We make that concession, the work was doing the same thing, driving the same if not similar trucks. But they are starting again doing a job that they've been doing, some of them, for 40 years. It's like they've just started there in this job.

PN1533

In relation to the conditions, they were similar conditions. There are obviously a couple of points such as the loss of RDOs and I know Mr Baroni says that it doesn't matter because they get paid for two hours that they otherwise wouldn't be paid if they got RDOs. That's fine for Mr Baroni to say but an RDO is obviously a day off per month, that means a different thing to different people. The rates were the same and there are obviously - and I think the table that Mr Baroni has produced is actually quite good, taking into account my initial observations about exhibit 5.

PN1534

In terms of those last points I made about the acceptability of employment, we say that the Commission should take that into account if it decides that it has jurisdiction to exercise its discretion under section 120. If the Commission decides that then it ought to take into account those two points; transfer entitlements and continuity of service as well as the loss of RDOs, but that's obviously not going to be a big factor in the Commission's determination but it should take that into account when deciding what quantum to reduce it to. We say - and it occurred in the Cameron's case that Mr Baroni took you to. The Commission should not automatically reduce the entitlement to nil. That shouldn't be a default position. The Commission should determine if it determines that everything is hunky dory, there was an obtainment of employment, the employment was acceptable, the employees should receive nothing in this situation. That's when it should reduce it to nil. It shouldn't say starts at nil and works its way up. It should be worked on the other way.

PN1535

THE DEPUTY PRESIDENT: From what basis, the agreement scale or the NES?

PN1536

MR WARNES: The agreement scale, your Honour. I don't want to argue Mr Baroni's case for him but there is and I don't have the name of it. I tried to contact Mr Fagir during the proceedings but there is a Full Bench decision that deals with whether or not section 120 can be used to reduce entitlements under an enterprise agreement. The Full Bench decided that because it's a supplementary term, they went into - it was quite a long decision. I don't have it with me and as I said I don't want to argue Mr Baroni's case for him, but in my duties to the Commission I have to advise you that there is a Full Bench decision which deals with this and - - -

PN1537

THE DEPUTY PRESIDENT: Will you send a note to my Associate if you find it?

PN1538

MR WARNES: As soon as Mr Baroni replies I'll be sure to do that. Not Mr Baroni, Mr Fagir was the counsel on the case so I will send that to you, yes, your Honour.

PN1539

THE DEPUTY PRESIDENT: Thank you.

PN1540

MR WARNES: The final - I suppose it's not even a submission but the observation I would make is that we find ourselves in a particularly bizarre case right now where Mr Baroni is asking you to dismiss his own application. It occurs to me that Mr Baroni and DWR have put the TWU to considerable cost to run this case when there was perhaps no reasonable prospects that it would succeed. I just want to foreshadow that at the end of my submissions because it does irk me somewhat that we have been put to this when in fact it probably could have been decided by the Chief Industrial Magistrates Court, if the company is relying on the fact that there was no termination. I'll just leave it there.

PN1541

THE DEPUTY PRESIDENT: That was seemingly the same position that Watson VP faced, an application by an employer which he then found had no application.

PN1542

MR WARNES: It was and I'm not saying you don't have the power to do that, not for one second am I saying that.

PN1543

THE DEPUTY PRESIDENT: No, no.

PN1544

MR WARNES: But it is a bizarre position.

PN1545

THE DEPUTY PRESIDENT: I know what you're foreshadowing.

PN1546

MR WARNES: Thank you, your Honour.

PN1547

THE DEPUTY PRESIDENT: Thank you.

PN1548

MR BARONI: Thank you, your Honour. Can I just deal with that last issue first and I'll be blunt about it. That the proposition is bizarre and it's for this reason that it's bizarre; the application for a claim of redundancy is filed months after the termination. However ultimately the Commission decides the termination is, whether it's a resignation or a termination at the initiative of the employer filed months after it. It's entirely appropriate, it's entirely appropriate that my client defends that.

PN1549

Now as I've said to you, your Honour, the simple proposition is that the CIM or the Federal Super Court does not have power, in my submission, to vary the amount of redundancy. All it can do is make a determination in respect of whether there was a redundancy or not because it is a jurisdictional fact. That's it. So in those circumstances when these people, some afterthought, maybe we can get some redundancy out of this, because that's what it is at the end of the day. This is what this case is about, they're not fair dinkum. Seven or eight months - - -

PN1550

MR WARNES: Your Honour, he can't make that submission. That's completely unfair.

PN1551

MR BARONI: I've just made it. Seven or eight months later - seven or eight months later they - - -

PN1552

MR WARNES: Do you want to look at my notes.

PN1553

MR BARONI: Do you want to let me finish?

PN1554

MR WARNES: No.

PN1555

MR BARONI: Seven or eight months later they file the application.

PN1556

THE DEPUTY PRESIDENT: You've been very courteous to each other up to now. Can we finish on a nice note?

PN1557

MR BARONI: Indeed. Thank you, your Honour. So seven or eight months later they decide to make the application. That's all I need to say for that, so Mr Warnes thinks he's going to succeed on some issue of costs well we'll deal with that at the relevant time. Equally, the reverse would be apt as well if that's the view that Mr Warnes wants to put forward.

PN1558

Can I just deal with very briefly in reply some of the issues. Can I just deal with the evidence of Mr - sorry, the submissions in relation to Mr Waldrop. Kings wanted some people, that was the evidence, but they didn't want all of them. They were going to advertise and they weren't going to pay the rate. What Mr Waldrop did is got them to take all of them, stopped them from advertising and got them the rate. Still not good enough for the TWU. So that's the first thing and that's a fact, that's the evidence. That is the evidence. That's the evidence of Mr Waldrop.

PN1559

This nonsense that he was a negotiator, whatever that means I don't know. At the end of the day, the point about Mr Elliott was this, some of the evidence that came out was that the employees, individual employees, together with Mr Elliott were the negotiators, were the ones that, you know, were clenching the deal. In those circumstances it would have been more than appropriate for Mr Elliott to come here and give evidence about this so-called involvement he had. He's not here. That's the inference that I ask the Commission to draw. He could have been here, he's not here and no explanation of why he's not here has been given.

PN1560

In relation to, for example, dealing with the view of Mr Overton, what he thought is irrelevant. It's an objective test not a subjective one, so he may have thought at the end of the day that - and genuinely believed that the terms and conditions weren't to his liking and therefore he's put it in his statement. But that's irrelevant at the end of the day. So it's not a question of discrediting him and it wasn't a question of cross-examining, your Honour, either. It's a question of fact by a comparison of two industrial instruments made by this Commission. That's all and that's all that I've done and it displaces some if not all of the issues he raised and again I said it really doesn't - as I said, it really doesn't matter what he thinks or what any employees think in that respect in terms of the conditions. If it is a question of having to look at the suitability of those alternative positions, it's a question which needs to be dealt with objectively by the Commission.

PN1561

More importantly, your Honour, and your Honour has touched upon this - well, rather than touched has made much about this. Mr Warnes seems to have this proposition and he's put it forward again in the Cameron's decision that there needs to be a job there, there needs to a fully articulated job, clear and present, capable of being understood and being able to be accepted or rejected by the employee. Now that's right but at what point? You see, as we all agree and there's no dispute about this, the employer embarked upon a path of getting these employees work with Kings. That's what they were asked to do, that's what they did. If the employees didn't want that job with Kings at the end of they, they could have said not happy with it, don't care, I'm not going to accept it until you tell me what I'm going to be doing on Monday. Because there was no termination at the end of the day. That is the fact.

PN1562

So it's only at that point in time when the offer's rejected that it crystallises into an issue well, what have you got for me? If I've got nothing for you and I don't articulate anything for you then you could resign and in those circumstances where I'm not giving you appropriate work et cetera, I'm sure there'd be an argument that notwithstanding there was a resignation it would be a termination at the initiative of the employer. The cases are clear on that although in the unfair dismissal context the principles, in my submission, would be the same, there'd be nothing to suggest otherwise. The fact is that we never got to that point because these guys embarked upon a process of getting the best they could in relation to obtaining employment with Kings and that's what they got. They accepted it. As your Honour rightly pointed out, they all had a choice and all conceded clearly, unambiguously if I didn't take the job, I still would have been at Kings - at DRW.

PN1563

It's at that point that there would have been a debate about right, what am I doing? From that would have flowed either an offer for consideration or a termination because you don't want it or you don't want to work here, whatever the case is. It's that point in time that that issue about what was available would have crystallised, and it was exactly the same issue in the Cameron's decision. In the sense that, you know, Mr Warnes' argument was well these jobs actually have to be there, they have to actually physically exist. There's no proposition for that. As I said, we never got to that point, we never got to that point.

PN1564

Mr Warnes took you to clause 3.3 of the agreement and with respect, I mean it's completely meaningless because if that was the catch all then there'd be no work for 37 to do in terms of the obligation on the employees not to refuse a reasonable offer, otherwise they'd have no work to do. It's just simply a nonsense submission. At the end of the day it's there for a reason and that is to try and find suitable alternative employment. As your Honour rightly points out, redundancy is not there as you know I get a job and get redundancy. That's not what it was created to do, and in my submission this is what this is becoming - starting to look like, this case. Given the length of time between the claim for redundancy and the fact that again undisputable, they had a choice, they exercised that choice and now they still want redundancy.

PN1565

Yes, there was loss of credits, that's never been a fact that's been hidden by my client, readily admitted in their primary statements that that was the case. But it's not fatal, it doesn't matter at the end of day, particularly in circumstances where you have a choice. Because if that was the major concern that you had, don't take the job. Don't take the job, stay where you are, because you're not going to lose it either way, in the sense of you're either going to keep a job at DRW and maintain those credits or you'll end up no worse off than you were before because it will all be paid out if you get terminated and then it's a genuine redundancy.

PN1566

So if that's a significant contribution to their thought processes, they shouldn't have accepted the job in the first place. All the employer did was embark on a process, as I've said, to give them what they wanted. They didn't accept it first off, they rejected it. They rejected it because the rate wasn't good enough, and the rate's a critical issue. Because these people were making conscious decisions all the way from the information they were relayed to and the propositions that were being put to them by DRW that Kings were putting. They made conscious decisions about what they wanted to do. You can't just sort of sweep that under the carpet and say "Notwithstanding I made all these conscious decisions, I still want a redundancy". They could have stayed at DRW.

PN1567

The last thing I wanted to deal with is this issue about - and again, it only arises if you're against me on this fundamental proposition that they are entitled to a redundancy because there was a termination. That's the principal thing and I forgot to actually briefly deal with that.

PN1568

Again Mr Warnes seems to be making submissions about the job, the job no longer exists - I mean, there has to be a termination of employment. There has to be a termination of the employment otherwise 119 doesn't click. It's clear on the Full Federal Court, it says that - his Honour Watson VP said that it's clear, there has to be a termination. If there's no termination, nothing happens. Nothing happens until the question arises about what is it that I'm now doing. That's the only time that this issue can crystallise. When people make conscious decisions about what they want to do, when they have choices, a real choice, then it can't crystallise, in my respect - it just can't.

PN1569

As I've said, I just want to quickly touch upon this issue about the transfer of entitlements. It's clear that these employees - or most of them, not all of them - had many years of brick carting, and it's also fair to assume that - when you look at the table I handed up, your Honour, that was prepared from the evidence, you have varying degrees of service, 18 years, 27 years, 25 years, 41 years. No doubt some of that long service leave, for example, would have been taken over the years. You have to take it over the years by virtue of the legislation.

PN1570

And it's a question that - when you say you lose your credits, in what proportionate amount do you lose it? Clearly if you are there for fewer than 10 years it doesn't crystallise, you're not entitled to it, unless it is a redundancy or those general exceptions to the legislation. Once you're there 15 years or above 10, you're entitled to it in any circumstance, whether you're terminated or resign, it really doesn't matter, but then all that's happening is you're incurring them in blocks of five.

PN1571

And again, putting it in the context, redundancy is capped as well. So it's a question of what - you know, that I've lost 45 years of service, picking a number out of the air. What does it really matter? Apart from the obvious, that there is a loss of 45 years of service in a sense, what is the actual loss? It's not as if - at some point there's a break-even point in terms of - you can't lose any more I suppose is the proposition I'm putting to you. You know, once you've hit a threshold of accrual then you accrue, whether it's 20 years or 15 years, you accrue at the same rate, and one presumes that from time to time you take your long service leave.

PN1572

So again I've conceded from the beginning that it is a factor. It's one of the factors, not the factor, and just of itself doesn't mean that there should be a finding that the employment is not suitable, particularly again, your Honour, in circumstances where there was that choice, and that is fundamental to the argument I'm putting forward.

PN1573

I think that's all I really need to deal with in reply to Mr Warnes' submissions, unless your Honour has any other questions.

PN1574

THE DEPUTY PRESIDENT: Thank you.

PN1575

MR BARONI: Thank you, your Honour.

PN1576

THE DEPUTY PRESIDENT: I propose to reserve my decision in the matter, and I thank you both for the efficient conduct of the proceedings. I had set another date, I think, which of course is now vacated. I now adjourn.

ADJOURNED INDEFINITELY [1.19 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #SB1 APPLICANT'S WRITTEN SUBMISSIONS....................... PN1209

EXHIBIT #5 TABLE COMPARING RELEVANT CLAUSES IN BOTH ENTERPRISE AGREEMENTS.................................................................................................. PN1345

EXHIBIT #6 DOCUMENT TITLED "DISTANCES BETWEEN CECIL PARK AND MOOREBANK".................................................................................................. PN1349

EXHIBIT #7 EXTRACT FROM GOOGLE MAPS....................................... PN1350