FEDERAL COURT OF AUSTRALIA

Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99

ORDERS

THE COURT ORDERS THAT:

1.    Leave to appeal be granted.

2.    The appeal be allowed in part.

3.    The primary Judge’s determination that the first appellant contravened s 50 of the Fair Work Act 2009 (Cth) by contravening cl 7 of the Port Kembla Coal Terminal Limited Enterprise Agreement 2012-2015 be set aside.

4.    The respondents’ claim that the first appellant contravened s 50 of the Fair Work Act 2009 (Cth) by contravening cl 7 of the said agreement be dismissed.

5.    The primary Judge’s determination of the respondents’ claims under ss 340 and 346 of the Fair Work Act 2009 (Cth) be set aside.

6.    There be a new trial of the said claims under ss 340 and 346 of the Fair Work Act 2009 (Cth) before a differently-constituted court.

7.    Otherwise, the appeal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JESSUP J:

1    This is an application for leave to appeal and, provisionally upon the grant of leave, an appeal, from orders made by a single Judge of the court on 16 November 2015 in favour of the respondents, Construction, Forestry, Mining and Energy Union (“the Union”), Adam John Giddings, Jason Rosewarn and Jennifer Arber in a proceeding brought by them against the appellants, Port Kembla Coal Terminal Ltd (“the Company”) and Peter Green. In that proceeding, the respondents alleged that the Company had contravened s 50 of the Fair Work Act 2009 (Cth) (“the FW Act”) by contravening certain terms of the Port Kembla Coal Terminal Limited Enterprise Agreement 2012-2015 (“the Agreement”), that the Company had contravened ss 340 and 346 of the FW Act by terminating the employment of Mr Giddings, and that Mr Green was likewise liable for the contraventions of ss 340 and 346 as an accessory pursuant to s 550 of the FW Act.

2    In his orders of 16 November 2015, the primary Judge gave effect, in part, to an earlier decision, published on 8 October 2015, in which he upheld significant aspects of the now respondents’ claims, but he reserved for further consideration other heads of relief which had been sought. Because his Honour’s orders were, in this respect, interlocutory, leave to appeal is required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”). The decision of 8 October 2015, however, finally determined the rights and wrongs of the case at a high level, and the respondents do not resist the grant of leave to appeal to the extent of grounds of appeal that were developed in the applicants’ written submissions filed before the hearing of the present application. In the circumstances, I consider that leave to appeal should be granted. Henceforth in these reasons, I shall refer to this proceeding as an appeal, and to the applicants as the appellants.

THE FACTS IN OUTLINE

3    What follows in this part of my reasons is based substantially on findings made by the primary Judge.

4    The Company, which is owned by a consortium of six coal producers, operates the coal terminal at Port Kembla. As at February 2015, the Company had about 98 full time equivalent employees. Mr Green was the General Manager at the terminal, albeit that he was employed by a company associated with one of the consortium members. Until the termination of their employments in circumstances which led to the proceeding before the primary Judge, Mr Giddings was employed by the Company in the position of Long Term Planner, Mr Rosewarn was so employed in the position of Facilities Maintenance Engineer and Ms Arber was so employed as an Administration Assistant. They were all members of the Union, and Mr Giddings was president of the Port Kembla Coal Terminal Lodge (“the Lodge”).

5    In his reasons of 8 October 2015, the primary Judge explained that deteriorating business conditions in the coal industry in the years leading to 2014 caused the Company to abandon what had, in May 2011, been a project to upgrade the infrastructure and facilities at the terminal. However, earlier reports on the condition of plant and equipment at the terminal had highlighted the extent of the backlog of maintenance and restoration work that was required. The scale and complexity of this work was beyond routine repair and maintenance activities, and it was decided to undertake the necessary work by way of a dedicated project team. At the times which became relevant in the proceeding before his Honour, there were about 50 contractors engaged on this project work, in addition to 5-15 contractors who were performing non-project work at the terminal.

6    In March 2014, Mr Green announced an operational review of the Company’s business. John Gorman, the Operations Manager of the Company (albeit that he too, like Mr Green, was employed by a company associated with one of the consortium members) had been on secondment to another business within the same group. Upon his return to the Company in April 2014, Mr Green asked him to work on that operational review. Mr Gorman did so, and it was not until July 2014 that he returned to his responsibilities as Operations Manager. It was, accordingly, Mr Gorman who carried out much of the early work on the review. Through April, May, June and July 2014, Mr Gorman kept Mr Green informed about how the operational review was progressing, in part through regular fortnightly meetings.

7    The purpose of the operational review was to identify ways in which the Company could achieve efficiencies and savings to reduce costs, including consideration of whether there were any activities that could be done differently, and whether there were any positions within the Company that were no longer needed. The primary Judge found that, in conducting the operational review, and in considering a reduction in manning levels through the abolition of positions, the Company was engaged in “a bona fide attempt to reduce its costs”.

8    The primary Judge found that the operational review was conducted in two “phases”. The initiatives in Phase 1 included taking up an existing proposal to reduce shift team members (which involved the transfer of two employees from each shift team back to day work groups), a proposed freeze on wage increases under the Agreement, and a proposed 12-month suspension of the annual increases to grades under the Agreement. Mr Green accepted Mr Gorman’s recommendations in these respects. The shift team members were reduced by two and, in July 2014, Mr Green sought, but did not secure, the employees’ agreement to a wage freeze and to a 12-month suspension on the regrading of positions.

9    Phase 2 of the operational review involved a review of day work support and functional roles in order to identify cost reductions and efficiencies, including considering whether there were any positions which were surplus, or the duties of which could be re-distributed amongst the current workforce. In this part of the review, Mr Gorman spoke to relevant managers, including the Engineering Manager Roger Stewardson, the Business Services Manager Flavio Tonini and the Human Resources Manager Briony Ragen, to determine whether reducing the number of positions in their teams was feasible. It is apparent from the reasons of the primary Judge that, over the period May-July 2014, each of these managers was giving his or her own attention to the matters that were of interest to Mr Gorman. To an extent, these streams of activity appear to have been proceeding in parallel, and any attempt to impress upon them a precise chronological order would have been unproductive, and was not attempted by the primary Judge. But, because the positions occupied by Mr Giddings and Mr Rosewarn came within Mr Stewardson’s area of responsibility, the latter’s involvement in the review, and his contact with Mr Gorman, were of particular interest to the primary Judge. He found that Mr Stewardson had several discussions with Mr Gorman in the period referred to.

10    On 16 April 2014, Mr Stewardson informed Ms Ragen of some preliminary ideas which he had as to roles in the engineering team that could be consolidated. He attached two documents he had prepared, titled “PKCT Organisational Chart 12.5M” and “Organisational Redesign Stage 2”. The primary Judge noted that, in these documents, Mr Stewardson proposed the abolition of seven engineering positions, including the Long Term Planner and Facilities Maintenance Engineer positions occupied by Mr Giddings and Mr Rosewarn respectively. He described this proposal as a “work in progress” and probably a “stretch target”, but said that it could be passed on to Mr Gorman. Following a meeting with Mr Gorman and Ms Ragen on 2 May 2014, Mr Stewardson advised that it might be possible for the engineering team to work without three Technical Officers positions, two Project Officer positions, and the Long Term Planner and Facilities Maintenance Engineer positions.

11    On 23 May 2014, Mr Gorman, Mr Stewardson and Ms Ragen met to consider a detailed PowerPoint presentation prepared by the latter titled “Operational Review - May 2014”. Ms Ragen proposed the abolition of a number of positions, including the positions of Long Term Planner and Facilities Maintenance Engineer, and one Administration Assistant position. The primary Judge noted that Ms Ragen’s presentation “tends to show that Ms Ragen thought that affected employees could be redeployed into work undertaken by contractors engaged by [the Company], including that Mr Giddings could be redeployed to the ‘MTEC [Manuals, Training, Engineering, Commissioning] position’.”

12    On 3 June 2014, Mr Gorman and Ms Ragen met with Mr Tonini to discuss, amongst other things, whether cost savings could be found in the finance/administration team. In this meeting, Mr Tonini said that there was scope to reduce positions in his team.

13    Also on 3 June 2014, Mr Gorman prepared a document titled “PKCT Operational Review summary paper” in which he outlined his preliminary thoughts on labour cost savings and identified the possibility of abolishing seven positions. The primary Judge noted that, in this document, Mr Gorman “approached the proposed abolition of positions on the basis that the Agreement required that offers of voluntary redundancy be made to other employees before forced redundancies were implemented”, citing the following items under the heading “Process/EA Compliance”:

•    Can we focus on a subset of the PKCT Employee group?

•    Who must VR’s [sic] be offered to? Can it just be a subset of the PKCT Employee group?

•    On what grounds can we rejected [sic] a VR request? Cost savings? Retirement likelihood?

14    The primary Judge also found that, “in May or June 2014”, Mr Gorman prepared a document titled “Review of the obligations regarding workforce reductions”, in which he summarised the Company’s obligations under the Agreement in the context of the proposed abolition of positions and commented on how the Company could adhere to its obligations. His Honour noted that this document “tend[ed] to show that Mr Gorman understood the Agreement to require [the Company] to offer redeployment and voluntary redundancies before implementing forced redundancies and to investigate all avenues to avoid forced redundancies, including by reducing contractors” and that “he thought that there were avenues potentially available to avoid the forced redundancies of Mr Giddings and Mr Rosewarn.”

15    In June 2014, Mr Gorman prepared a detailed spreadsheet titled “Scenario Planner”, in which he set out the positions that would be abolished under various scenarios, identifying the affected employees by name. The spreadsheet set out the age, length of service, cost of redundancy, and job swap and redeployment options in respect of 15 positions, including those of Mr Giddings, Mr Rosewarn and two Administration Assistants. The primary Judge noted that this spreadsheet “tend[ed] to show that [Mr Gorman] understood the Agreement to require [the Company] to offer voluntary redundancies and to redeploy affected employees into contractors’ work before forced redundancies could be implemented”, that “Mr Giddings could potentially be redeployed into a number of positions within [the Company] (if they became vacant through offers of voluntary redundancy) or into a number of contractor roles, and that Mr Rosewarn could potentially be redeployed into the position of Services Planner within [the Company] (if that became vacant through voluntary redundancy) or into the Project Supervisor contractor role” and that “an affected Administration Assistant could potentially be redeployed into a contractor role of Secretary/Personal Assistant within the ‘Project/Non-EA’ area.”

16    By late June 2014, Mr Gorman had arrived at the view that, other than in the case of the Administration Assistants, the Company should not offer voluntary redundancies to employees whose positions were abolished as a result of the implementation of the operational review. He advised Mr Green that offering voluntary redundancies in relation to positions abolished in the engineering team would reduce the cost savings that the Company could achieve.

17    On 30 June 2014, Mr Gorman prepared an organisation chart which proposed the abolition of five engineering positions (including Mr Giddings’ and Mr Rosewarn’s positions) and three other positions (including two Administration Assistant positions). He provided this chart to Mr Green at about that time.

18    On 4 July 2014, Mr Green made a presentation to the annual general meeting of the Lodge in which he stressed, amongst other things, the difficult market conditions which the Company was facing. He sought the agreement of those present to forego a 4.5% wage increase which was their entitlement under the Agreement. At this time, Mr Green did not mention the proposal contained in Mr Gorman’s spreadsheet of 30 June 2014.

19    In a period which Mr Stewardson identified no more precisely than that it was “between June and October 2014”, he prepared a series of PowerPoint slides titled “Operations Review: Indicative Engineering Team Organisation Charts”. At trial, this document was marked, and I shall refer to it, as Ex A4. It included various organisational charts: one headed “Current” which represented the then current positions which reported to him and showed “each role to become redundant” (five positions, including those occupied by Mr Giddings and Mr Rosewarn); one headed “Post Ops Review”; one headed “Post R&C”; and a final one headed “Nirvana”. Mr Stewardson was cross-examined about that heading, and he said that it was “to make myself feel good”. He agreed with counsel that that it was his “ideal structure”, that it contained his “ideal personnel filling particular positions” and that he did not want Mr Giddings in his team. In his reasons of 8 October 2015, the primary Judge said: “In the final chart he prepared, headed ‘Nirvana’, Mr Giddings no longer had a job in the Engineering team.” That was strictly accurate, but any impression from his Honour’s observation that previous slides had not also omitted Mr Giddings’ position would not have been justified: the “Post Ops Review” and the “Post R&C” slides likewise did not include the position of Long Term Planner, or the name of Mr Giddings.

20    In about mid-July 2014, in preparation for a meeting with Mr Green, Mr Stewardson reviewed a number of positions within the engineering team, and prepared a summary of his views as to whether each position was necessary for the Company to operate effectively. On 17 July, he emailed the summary to Mr Green and Ms Ragen. He proposed the abolition of positions which included those of Long Term Planner and Facilities Maintenance Engineer. The summary included a passage in which Mr Stewardson said that the necessary organisational changes could not be achieved in a timely way through consultation, and that the Company should “just do it”.

21    It is next necessary to mention a document prepared by Mr Gorman titled “FY15 PKCT Operations Organisational Review”, to which the primary Judge referred as the “OOR report”. Although (as will be mentioned further below) his Honour rejected much of Mr Gorman’s evidence, there are some respects in which that evidence appears to have been uncontroversial. There were four drafts of the OOR report in evidence, all of which were produced by the Company pursuant to a Notice to Produce served by the respondents. In the circumstances, the first evidence which Mr Gorman gave about them was under cross-examination. He then told counsel for the respondents that he had, on Ms Ragen’s suggestion, used as a template a document previously used by another company in the same group as one of the consortium members. He had altered that template and produced a document which was relevant to the situation at Port Kembla, a task which occupied him for about 4-5 hours. That was the first draft of the OOR report, which Mr Gorman said had been prepared on or before 2 July 2014. In his reasons, the primary Judge said that the first draft was “produced” shortly after 2 July 2014, but that was, it seems, a reference to the timing of Mr Gorman’s dissemination of the draft to others in the management of the Company, including Mr Green, Mr Stewardson and Ms Ragen, by way of a shared link on the Company’s computer network.

22    Of the first draft of the OOR report his Honour said:

Although the draft report did not identify the positions to be made redundant it focused on the management and implementation of the planned dismissal of some employees for reasons of redundancy. It is significant that the report was prepared on the basis that [the Company] was required to redeploy affected employees through offers of voluntary redundancies and by reducing contractors, so as to avoid forced redundancies.

23    The second draft OOR report was, according to the primary Judge, produced by Mr Gorman and Ms Ragen in July 2014. His Honour noted that it revealed “a significant change in [the Company’s] approach to its obligations to make use of redeployment and voluntary redundancy before implementing forced redundancies and to investigate all avenues to avoid forced redundancies including by the reduction of contractors.” His Honour said that the first draft tended to show that Mr Gorman, Mr Stewardson and Ms Ragen understood that, where employees were facing redundancy, the Company was obliged under the Agreement “to redeploy them into suitable vacancies that arose through offers of voluntary redundancy or into suitable contractors’ work”. His Honour found that “the contemporaneous documents” also tended to show that these managers recognised that there were potentially available avenues for the redeployment of Mr Giddings and Mr Rosewarn.

24    By contrast, it was stated in the second draft OOR report that there were no redeployment options for those employees within the Company. His Honour said:

The second draft OOR Report includes a section headed “Bona Fide Redundancy Checklist” which indicated that Mr Giddings and Mr Rosewarn were not to be redeployed:

(a)    into any suitable vacancy created through offers of voluntary redundancy because they each occupied an “appointed position” which is described as “stand-alone”; or

(b)    into suitable contractors’ work (by reducing contractors) because the contractors were not engaged on a full time and permanent basis; ….

The primary Judge said that, from this time, the proposal to abolish positions proceeded on the basis that it would occur without voluntary redundancies being offered in relation to Mr Giddings’ and Mr Rosewarn’s positions, and without reducing contractors. His Honour accepted Mr Gorman’s evidence that the change in the Company’s approach to its obligation to investigate reducing contractors followed receipt of legal advice authorised by Mr Green in June 2014. His Honour inferred that Mr Green, Mr Gorman and Ms Ragen were informed of that advice in around July 2014.

25    The primary Judge also found that the third draft OOR report was created by Mr Gorman and Ms Ragen, and provided to Mr Stewardson and Mr Green by way of a shared link at the time of its creation. His Honour said:

In the third draft report the proposal to abolish the Long Term Planner, Facilities Maintenance Engineer and two Administration Assistants positions was mature and comprehensive, and in my view essentially complete. It indicated that offers of voluntary redundancy would not be made other than in relation to the Administration Assistant positions and that contractor positions which were not full-time and permanent would not be considered for reduction.

According to the primary Judge, in the third draft OOR report the proposal to abolish positions was to be announced on 21 October 2014, and to be followed by three weeks of consultation.

26    The primary Judge was obliged to determine when the third draft OOR report was produced. This was not a straightforward matter since, although his Honour described these documents as “reports”, they were in fact different versions of an electronic artefact that Mr Gorman had created and shared with other managers through the Company’s computer network. None, it appears, was formally published as a paper document and dated as such. The word processor dates appearing on the foot of all or most pages were quite unrevealing as to the date upon which the content on any particular page took the form in which it was rendered, in hard copy, for the purposes of becoming an exhibit in the case below. Indeed, it was put to Mr Gorman, and he accepted, that some of those dates referred to times when the template of the original document had not yet come into the possession of Ms Ragen.

27    Remembering that the first draft OOR report was produced on about 2 July 2014, and that the second such report was produced later in the same month, the primary Judge found, as a matter of inference, that the third such report was also produced in that month. As I read his Honour’s reasons in this regard, he placed weight on passages in which the periods during which certain affected employees would be absent from work (on account of leave, etc), and thus unavailable for consultation subsequent to the announcement of proposed redundancies were identified prospectively. In each case the information was said to be “as at 25 July 2014”. Ms Arber had annual leave “planned” for 18-24 September; Mr Rosewarn had leave “booked” for 22 September-17 October; Mr Giddings “would be” absent on union business on 4-5 August 2014. His Honour noted that both Mr Gorman and Mr Green accepted that they saw a document in the same form as, or similar to, the third draft in July 2014. His Honour did not put great store by this circumstance, because of the strong similarity of different versions of the report, but it was a factor tending in the direction of inferring a July date for the production of the report. Additionally to those considerations, the primary Judge noted that these draft reports were the Company’s documents, and that there appeared to be no reason why the Company could not have called more satisfactory evidence of their dates of production, for example by calling Ms Ragen as a witness (which was not done).

28    As against those considerations, his Honour acknowledged the appellants’ point that the third draft used the past tense to state that the development of the proposal “commenced” in August-October 2014. But he answered that point by noting that each draft of the report used the word “commenced” in the same context “and it could just as easily have remained unchanged between drafts.” His Honour also noted the date, 21 October 2014, stated in the third draft as the time of the announcement of the proposal referred to in it, but he took the view that this aspect was “far from conclusive”, and that it may have been explicable by the fact that Mr Rosewarn was to be absent on leave from 22 September to 17 October 2014.

29    In his reasons of 8 October 2014, the primary Judge continued:

For completeness I note that, after both parties had closed their cases and without seeking leave to do so, [the Company] sought to file three computer screenshots as Attachments A, B and C to its reply submissions dated 5 May 2015. Although [the Company] put on no evidence as to the provenance or meaning of the screenshots it submitted that they showed the dates that the three draft report [sic] were produced. The Union objected to the admission of further evidence on the basis that it had closed its case and that doing so would deny the Union a proper opportunity to test the provenance and understand the meaning of the screenshots. I have upheld that objection and I have not admitted Attachments A, B and C into evidence.

30    The primary Judge’s conclusion that the third draft had been produced in July 2014 was significant in his Honour’s disposition of a number of factual issues which arose in the case before him because it opened the inference that it was by reference to that draft that Mr Green gave consideration to the proposal at the end of that month or the beginning of August and because, save for one point of detail, the draft represented the proposal ultimately announced by the Company in December 2014.

31    There was a fourth draft of the OOR report produced on about 16 October 2014, the significance of which, in the view of the primary Judge, was that, “apart from some date changes, [it] was no different in substance from the third draft OOR Report prepared before the 1 August meeting.”

32    On 1 August 2014, Mr Gorman, Mr Stewardson and Ms Ragen met with Mr Green. He considered their recommendation to abolish Mr Giddings’ and Mr Rosewarn’s positions, along with either one or two Administration Assistant positions. They recommended that the Company not offer voluntary redundancies to avoid forced redundancies in relation to Mr Giddings’ and Mr Rosewarn’s positions, and that it consider reducing contractors only where the contractors concerned were engaged on a full time and permanent basis. As to the latter aspect, the primary Judge noted that there were no such contractor roles. His Honour also noted that if both of these recommendations were accepted, there would inevitably be no positions into which Mr Giddings or Mr Rosewarn could be redeployed.

33    In his reasons of 8 October 2015, the primary Judge noted Mr Green’s evidence that, having received these recommendations, he explored the business case and rationale for them, the extent of the cost savings or efficiencies which they could achieve, and the practicality of implementing them. In evidence which was “essentially” corroborated by Mr Gorman and Mr Stewardson, Mr Green said that he did not accept the recommendations at that time, but gave the proposal involved in them “intermittent consideration over the next two and a half months” until mid or late October. His Honour did not accept that evidence. He held it to be “likely that Mr Green followed the recommendation of his senior managers and made the decision to abolish Mr Giddings’, Mr Rosewarn’s and at least one Administration Assistant position at or shortly after the 1 August 2014 meeting.” He accepted that Mr Green may have “given some further thought to the issue” after 1 August 2014, but he took the view that “nothing occurred thereafter which was anything more than fine tuning a decision already made.”

34     Mr Green met with Mr Gorman, Ms Ragen and Mr Stewardson on five occasions between 1 August and 18 November 2014 to discuss the progression of the operational review. The primary Judge rejected as “implausible” what he described as the Company’s evidence that these meetings involved “final recommendations”, at least insofar as Mr Giddings’ and Mr Rosewarn’s positions were concerned. His Honour found that there was “no cogent evidence” of any significant further or “final” recommendations; and there was no “material change” in the senior managers’ recommendations of 1 August 2014. The primary Judge referred, however, to the evidence of Mr Stewardson (which his Honour did not, at least explicitly, reject) that, in these meetings, he reaffirmed his recommendation that the positions of Long Term Planner and Facilities Maintenance Engineer be abolished, and that, in October 2014, he prepared a summary document which set out the reasons underpinning his view that these positions need not be maintained.

35    Neither did the primary Judge accept the evidence of Mr Gorman that, through August and September 2014, he developed a consultation plan to ensure that the Company met its consultation obligations under the Agreement. Rather, his Honour found that Mr Gorman’s consultation plan had been developed in July by way of the draft OOR reports. His Honour also dismissed as “of little assistance in relation to the development of the proposal” a plan prepared by Ms Ragen titled “Organisational Review (Phase 2) - Communications and Engagement Plan” which Mr Gorman said that he saw in September or October 2014. Absent evidence from Ms Ragen (who was not called), and given the content of this plan, his Honour inferred that it had been created before the third draft OOR report.

36    More or less from the outset, Mr Tonini had advised Mr Gorman that no more than one Administration Assistant position could be abolished. At least some of Mr Gorman’s proposals had had it that two such positions would be abolished. His Honour found that, on 10 October 2014, Mr Tonini emailed Ms Ragen and reaffirmed his July advice to Mr Gorman that only one position should be abolished.

37    The primary Judge referred to Mr Green’s evidence in his affidavit that he did not make the decision to proceed with the proposed abolition of positions until mid-October 2014. It was not until then, he said, that he informed Mr Gorman, Mr Stewardson, Ms Ragen and Mr Tonini that he endorsed the recommendations and that he decided to announce the proposal and to commence consultation with the Union. His Honour noted, however, that in cross-examination Mr Green “altered his evidence somewhat” by stating that he made that decision “around 29 October or in early November”. Mr Green also said that he did not make the decision that voluntary redundancies would not be offered in relation to Mr Giddings’ and Mr Rosewarn’s positions until mid-October, and that he did not decide that the Company’s consideration of reducing contractors would be limited to full time and permanent contractor roles until 10 December. The primary Judge accepted Mr Green’s evidence that, in October 2014, he had intended to announce the proposal to abolish positions in mid-November, but he delayed that announcement to 2 December 2014, because a farewell dinner for five longstanding employees was scheduled for 21 November.

38    The primary Judge referred to an email, dated 23 October 2014, headed “Legally Privileged – Confidential – Operational Review” from Ms Ragen to Mr Green, Mr Stewardson, Mr Gorman, Mr Tonini and others, and which included an invitation to a meeting on 29 October 2014. Ms Ragen attached a number of documents that, his Honour inferred, were to be discussed at the meeting, including a detailed execution timeline and calendar setting out the timing of the process for engaging in consultation, a documentation checklist and action list for impacted employees, template correspondence that was to be provided to each redundant employee, a redundancy information booklet dated June 2014, a list of frequently asked questions and proposed responses, the undated communication and engagement plan prepared by Ms Ragen which Mr Green said that he saw in September or October 2014, a briefing sheet titled “PKCT Organisation Review – Impacted Employee Record of Discussions” for use by a manager meeting with an affected employee, and the final draft OOR report (ie that which his Honour found to have been produced on about 16 October 2014). The primary Judge said: “Those documents show a highly planned process for compulsory redundancies, even including template correspondence to be given to employees who were to be made redundant.”

39    There was a meeting on 29 October 2014. The primary Judge referred to Mr Green’s evidence that this meeting was “to discuss various amendments to and refinements to the initial proposals”. His Honour did not accept that evidence, adding: “The documents tend to show that the meeting was about execution of pending redundancies rather than refinements to the proposal.”

40    The primary Judge found that the Company announced the proposal which involved the abolition of positions the subject of the case before him “with military precision”. On 1 December 2014, Mr Green telephoned Robert Timbs, Vice-President of the South-Western District Branch of the Union, to advise that he would be addressing a meeting of employees the following morning, but he did not inform Mr Timbs of the exact purpose of the meeting, as he said that doing so would “compromise the necessity of consultation”. Mr Green also emailed Mr Giddings and other members of the Lodge executive to invite them to the meeting, but he did not tell them, either, what was to be said at the meeting. At 8:04 am on 2 December 2014, Mr Green emailed the management and team coordinators to inform them that all employees were required to attend an information meeting at 9:00 am.

41    At that meeting, Mr Green informed the assembled employees that the outcomes of Phase 2 of the operational review would soon be implemented. He said that this stage might involve redundancies and that potentially affected employees would be spoken to that day, but he added that the Company was yet to make a final decision on any redundancies. Immediately after the meeting, Mr Green and other managers met with Union representatives, including Mr Giddings, Mr Timbs and Murray Dakers, vice-president of the Lodge. He gave a PowerPoint presentation, titled “PKCT Operational Review @ 2 December 2014”, which referred to the proposed abolition of positions, and reiterated that a final decision had yet to be made. He was questioned on the basis and rationale for the abolition of positions, and how any redundancies were proposed to occur, but he said he was not prepared to provide further information until the potentially affected employees had been informed that their positions were under threat.

42    In separate meetings on the same morning, Mr Giddings and Mr Rosewarn were informed that their positions were proposed to be abolished, and the three Administration Assistants, Ms Arber, Karen Maxwell and Nicky Ostach, were informed that one such position would be abolished and that, if none of them elected to take a voluntary redundancy, the Company would make one of them compulsorily redundant. At the end of those meetings, the affected employees were handed a letter dated 2 December 2014 titled “Business changes impacting your employment” which notified them of the outcome of the operational review, and noted that there were no vacant positions within into which they might potentially be redeployed.

43    On the afternoon of 2 December 2014, a second consultation meeting took place involving, amongst others, Mr Green, Mr Stewardson, Mr Tonini, Mr Giddings, Mr Timbs and Mr Dakers. At that meeting, Mr Timbs identified provisions of the Agreement which, in the view of the Union, required the Company to offer voluntary redundancies to employees other than those whose positions were to be abolished, and to consider reducing contractors before implementing forced redundancies. Mr Green said that voluntary redundancies would be offered only in relation to the Administration Assistant position, and that the Company was not obliged to offer voluntary redundancies in relation to the Facilities Maintenance Engineer and Long Term Planner positions.

44    On the morning of 3 December 2014, Mr Green met with Mr Gorman, Mr Stewardson, Mr Tonini and the Human Resources Manager, Amy Linton. There was some discussion as to the Union’s view that there were some “gates” through which the Company was required pass, and as to the Union’s concerns about employee classification, the use of contractors, and the separation of the Long Term Planner role from the other planning roles. Mr Green requested that the senior managers consider each of the issues raised by the Union and prepare responses so that he could be in a position to inform the Union of the Company’s position.

45    At 5:24 pm on 3 December 2014, Ms Linton emailed a document to Mr Gorman and Mr Stewardson and others, summarising the Union’s concerns and setting out a range of responses to matters anticipated to be raised by the Union. In relation to redeployment into contractors’ work it was stated:

a.    The Company is obliged to explore a reduction in contractors, where the work performed by a contractors [sic] can be performed by Employees of the Company, having regard to the skills and competencies of Employees and the nature of the work in question[.]

b.    [The Company] has reviewed the need for contractors to determine whether any contractor’s work can be performed by an affected employee, having regard to the skills and competencies of the employee and the nature and duration of the work.

c.    We will not redeploy people into contract roles which are for a finite duration where it does not make sense to do so having regard to the status of the contract and the skills required.

d.    [Insert link to matrix of all contractor positions at [the Company] and analysis of the skills of employees to be made redundant to evidence that the positions are not suitable (including because positions are temporary)]

i.    initial draft document has been created, to be updated by Roger/John as discussed M:\MANAGERS\Human Resources \ Management Access HR Files\Industrial Relations Material\Project Warranty\Operational Review October 2014\Analysis of contractor positions.xlsx

46    The “matrix” of contractor positions for which a link was required was an assessment of contractor roles that might be performed by affected employees. It had been prepared by Geraldine Uren, a contractor working in an administrative capacity. Although she did not give evidence, the matrix was tendered by the appellants, over the objection of the respondents. It took the form of a very brief spreadsheet, as follows:

The primary Judge inferred from this matrix that it was Ms Uren’s view, or the view of the manager who instructed her, that Mr Giddings had suitable skills for the contractor roles of Asset Management Specialist, Contracts Manager, Project Engineer, Project Supervisor, Painting Specialist, Fitter or an R&C Project role but that his skills were unsuitable for the roles of Asset Management Specialist and Painting Specialist, that Mr Rosewarn had suitable skills to work as a plumber or perform some R&C Project roles and that Ms Arber had suitable skills to work in an administrative support role within the Human Resources team.

47    On 4 December 2014, the Union wrote to the Company requesting it to provide information about the work undertaken by contractors so that it might meaningfully participate in consultation about reducing contractors. It sought the provision of extensive information, the detail of which was set out in the reasons of the primary Judge, but which does not need to be included here. On 5 December 2014, Mr Green met with his senior managers to prepare the Company’s response to that request. In what his Honour described as “extensive email exchanges through that day”, Mr Gorman, Mr Stewardson and Ms Linton discussed the precise wording to be used in the response. His Honour recounted Mr Gorman’s concession in cross-examination that, in formulating this response, he was “simply seeking to justify the company’s position the best way that he could, rather than genuinely considering the Union’s alternative view”.

48    On 8 December 2014, the Company provided its written response to the Union. It was, his Honour found, “little more than a reiteration of [the Company’s] position”. Provision of the information sought by the Union regarding contractors was refused. On 9 December 2014, the Union wrote again to the Company, maintaining that its actions were inconsistent with the Agreement, and complaining that the threatened dismissal of Mr Giddings constituted adverse action under the FW Act.

49    In an email sent to Mr Green, Ms Linton, Mr Tonini and Mr Stewardson early on 9 December 2014, Mr Gorman stated:

For the potentially impacted employees that the Company does not take through a voluntary redundancy process (i.e. LTP and FME roles), the “decision” on Thursday should be the “decision” to make those potentially impacted employees redundant, with any formal letter of redundancy to be issued on Thursday.

The primary Judge regarded Mr Gorman’s use of inverted commas around the word “decision” as indicating “that he knew that the decisions concerning the Long Term Planner and Facilities Maintenance Engineer positions had already been made”.

50    Also on 9 December 2014, Mr Tonini met with Ms Linton to discuss the possibility that none of the (three) Administration Assistants would elect to take a voluntary redundancy. They prepared a draft list of the criteria by reference to which the Company would decide which of these assistants would be made redundant, if none of them made such an election.

51    There was to be a further meeting between management and the Union at 9 am on 10 December 2014. At 8:11 am, Mr Green sent an email to Ms Linton, Mr Tonini, Mr Gorman, Mr Stewardson, Ms Uren, Ms Ragen and others, in which he set out the terms of letters which were to be sent to Mr Giddings and Mr Rosewarn. They included the following passage:

We have recently held discussions with you concerning Port Kembla Coal Terminal’s decision to undertake an organisational review. As discussed, we have carefully considered all the matters you have raised during the consultation. Regrettably, the outcome of the review and consultation is that your current position is no longer required.

52    At the meeting at 9 am, which was attended by Mr Green, Mr Stewardson, Mr Tonini, Ms Linton, Mr Timbs, Mr Giddings and Mr Dakers, the Union representatives argued that the Company should offer voluntary redundancies in relation to Mr Giddings’ and Mr Rosewarn’s positions and should consider further avenues to redeploy the affected employees. Mr Timbs asked why the Company was not exploring all avenues to avoid the forced redundancies of the three affected employees, and complained that the Company’s refusal to provide the requested information about contractors meant that the Union was unable properly to engage in consultation. Mr Green reiterated the view that the Company was not obliged to offer voluntary redundancies in relation to positions outside the finance/administration team, or to consider reducing contractors’ work save where the contractors were engaged on a full time and permanent basis. In his reasons, the primary Judge said, “Overall, there was little real engagement between the parties in the meeting and they just reiterated their positions.”

53    During the course of this meeting, Mr Timbs told Mr Green that the Union had canvassed some of its members, and that there were some employees who were interested in the option of voluntary redundancy. But Mr Green made it clear that the Company would not entertain the notion of offering voluntary redundancies in relation to Mr Giddings’ and Mr Rosewarn’s positions.

54    As the meeting drew to a close Mr Green said something to the following effect:

I am not fully au fait with the implications and applications of what has been said. It is [sic] given me food for thought. I will see that a decision will be made by tomorrow.

In cross-examination, however, Mr Green conceded that, before the meeting, he had already decided to terminate the employment of Mr Giddings and Mr Rosewarn, and that he would not alter that position.

55    Following the meeting, Mr Green gave some attention to what the comparative severance costs would be if, instead of Mr Giddings, Mr Rosewarn and Ms Arber being made redundant, three other long-serving employees took up voluntary redundancy. The result of what Mr Green described as a “short analysis” was that “at first glance the suggestion is more costly”.

56    At about 2 pm (still on 10 December 2014), Mr Green met with Mr Stewardson, Mr Tonini and Ms Linton. In his evidence, Mr Stewardson said that they discussed the issues raised by the Union during the meeting earlier that day, including the means by which the forced redundancies of the Long Term Planner and Facilities Maintenance Engineer roles might be avoided, and that Mr Green said that he had considered each of the issues raised by the Union and had made the decision that the three identified positions were redundant. The primary Judge did not accept this evidence. His Honour found that Mr Green had made that decision on or about 1 August 2014, and that there would have been no point in a discussion about the means of avoiding these forced redundancies. His Honour noted that Mr Green had conceded that his mind was made up on the morning of 10 December 2014.

57    On 11 December 2014, in separate meetings, Mr Green informed Mr Giddings and Mr Rosewarn that their employments had been terminated due to redundancy, effective immediately. Each was given a letter to that effect.

58    Later on 11 December 2014, Mr Tonini and Ms Linton met with the three Administration Assistants. Mr Tonini informed them that the opportunity for expressing an interest in voluntary redundancy was soon to close, and that if no-one elected to take that opportunity the Company would select one of them for forced redundancy. None of the three did elect for voluntary redundancy. Mr Tonini then recommended to Mr Green that Ms Arber be selected for redundancy. Mr Green accepted that recommendation, and it was put into effect.

THE RESPONDENTS’ CASE AT FIRST INSTANCE

59    In relation to their cause of action for contravention of various provisions of the Agreement, the respondents relied on s 50 of the FW Act, which provides as follows:

A person must not contravene a term of an enterprise agreement.

60    The provisions of the Agreement of which the respondents alleged contraventions were to be found in cll 7 and 13.5 thereof, which provided as follows:

7.    Workplace Change and Consultation

7.1    Consultation over significant change or effect will occur where:

a.    the Company is considering introducing a major change to production, program, organisation, structure, technology, shift arrangements, work organisation or the level of outsourcing in relation to its enterprise; and

b.    the change, if implemented, is likely to have a detrimental or significant effect on employees.

7.2.    The purpose of consultation is to:

a.    Resolve issues, where possible, at the workplace and avoid unnecessary problems by identifying and discussing matters of actual or potential concern as close to the workplace as possible;

b.    Improve the level of understanding between management, Employees and Employee Representatives by exchanging relevant information on a timely basis; and

c.    Deliver an efficient decision-making process by ensuring Employees are aware of a review of their work area that could lead to significant change or effect on working arrangements and allowing Employees and Employee Representatives inputs to be taken into consideration through a process of consultation, prior to a final decision being taken by management.

7.3.    The Company will give prompt and genuine consideration to matters raised by the relevant Employees and their Employee Representatives.

7.4.    The Company will notify the relevant Employees and their Employee Representatives of the proposed change as soon as a decision has been made.

7.5.    The consultation process may be modified by agreement between the parties.

7.6.    Significant change or effect may include but is not limited to:

a.    major changes in the composition, operation or size of the Company’s workforce; or

b.    the skills required; or

c.    the significant restructuring of work organisation; or

d.    proposals by the Company to outsource services or contract out services currently provided by Company Employees.

7.7.    The above definition seeks to illustrate that the changes requiring extensive consultation generally need to have broad impacts and be likely to affect a significant part of the Company’s operations or affects Employees’ working arrangements.

7.8.    The consultations will be conducted within a context which acknowledges the statutory obligations and responsibilities of the Company and where the Employees and Employee Representatives do not have a power of veto over the Company’s final decision. This does not affect the right of the Employees or their representatives to notify a dispute through the agreed Dispute Settlement Procedure.

….

13.5     Redundancy

13.5.1.    The Company undertakes that in managing manning levels to suit the business needs it will make use of redeployment and voluntary redundancy prior to implementing any forced redundancies.

13.5.2.    If workforce reductions for Employees bound by this Agreement were to become necessary, they will be undertaken through the consultative process described in this Agreement.

13.5.3.    The Company shall investigate all avenues to avoid forced redundancies, including the reduction of contractors, where the work performed by contractors can be performed by Employees of the Company, having regard to the skills and competencies of Employees and the nature of the work in question.

13.5.4.    If a redundancy situation still exists after the above steps have been taken, the process for determining required compulsory redundancies within a classification will be through consultation, including taking length of service into account.

13.5.5.    Should the need for redundancy arise, the PKCT standard severance package of four weeks pay in lieu of notice and three weeks pay per each year of service paid at the Special Purpose Rate shall apply, unless otherwise agreed or determined.

61    It was alleged by the respondents that, in the circumstances obtaining at the terminal in 2014, the Company was considering introducing a major change within the terms of cl 7.1 of the Agreement, and that such change was likely to have a significant or detrimental effect on employees. It was said that the Company contravened that provision by failing to consult the Union and the potentially affected employees. It was also alleged that the Company contravened cl 13.5.1 by terminating the employments of Mr Giddings, Mr Rosewarn and Ms Arber without having first having made use of “redeployment and voluntary redundancy”, and contravened cl 13.5.3 by terminating those employments without first having investigated the “reduction of contractors”.

62    Clause 9 became relevant in the contribution which it made to the respondents’ case under cl 7.1, in ways to which I shall refer. It provided as follows:

9.    Employment· Security

9.1.    The parties acknowledge that job security is a mutual obligation. Security of employment is important for improving working relationships, trust and cooperation with change. The parties do not want an environment where everyone is working in fear of losing their employment. The parties want an environment where people focus on doing their jobs safely, well and implementing improvement actions. Real employment security can only be achieved by successful business performance.

9.2.    It is not intended that the number of direct, full time employees engaged by the Company under this Agreement at the date that it is approved will be reduced over the life of the Agreement. However, the Company retains the right to make such changes should circumstances arise which, in its opinion, necessitate a change to the numbers of employees per shift or the skills components of teams. In such circumstances the Company will comply with Clause 7 (Workplace Change and Consultation) prior to the implementation of any change to manning levels.

9.3.    If a redundancy situation still exists after the consultation process in Clause 7 has been complied with, this will be dealt with in accordance with Clause 13.5 Redundancy.

9.4.    Where an Employee has appropriate skills and qualifications, it is the Company’s intention to provide Employees with opportunities for involvement in the “PKCT Upgrade Project”.

9.5.    The Company will not terminate the employment of Employees on the ground of redundancy, or not replace Employees who resign or retire, in order to:

a.    replace the Employee with a contractor; or

b.    have the job of the Employee performed by a contractor.

9.6.    The commitments above do not prevent the Company from using natural attrition or a process of redundancy to reduce the size of its workforce, nor does it require the Company to replace any Employee who retires or resigns.

9.7.    The Company is entitled to engage and use contractors, provided that the job security of Employees is not affected, consistent with the terms of this clause.

9.8.    When engaging contractors whose employees perform work within the scope of this Agreement, the contractor will be required to pay their employees the more beneficial of:

a.    The Special Purpose Rate for the minimum grade level of equivalent or comparable Employees engaged under this Agreement (Grade 1 for Operators and Grade 3 for Trades) together with the payment of overtime in accordance with Clause 15.3.2 and Meal Allowance in accordance with Clause 15.6; or

b.    The ordinary time earnings contained in an Enterprise Agreement made under the Fair Work Act 2009 and binding the contractor and his or her employees.

63    The respondents’ case under ss 340 and 346 of the FW Act was confined to the circumstances of Mr Giddings. As to s 340, the respondents relied on para (a) of subs (1):

(1)    A person must not take adverse action against another person:

(a)    because the other person:

(i)    has a workplace right; or

(ii)    has, or has not, exercised a workplace right; or

(iii)    proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right….

The workplace right on which the respondents relied was that referred to in s 341(1)(a) of the FW Act, namely, that Mr Giddings had roles or responsibilities under a workplace law or instrument, including those of Lodge President and workplace representative under the Agreement.

64    As to s 346, the respondents relied on paras (a) and (b) thereof:

A person must not take adverse action against another person because the other person:

(a)    is or is not, or was or was not, an officer or member of an industrial association; or

(b)    engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b);…

The industrial activities upon which the respondents relied under s 346(b) were those set out in para (a), and in subparas (ii), (iii) and (v) of para (b), of s 347, namely, that Mr Giddings remained an officer or member of an industrial association, that he organised or promoted a lawful activity for or on behalf of an industrial association, that he encouraged or participated in a lawful activity organised or promoted by an industrial association, and that he represented or advanced the views, claims or interests of an industrial association.

65    The respondents also alleged a contravention of cl 4(k) of App 1 to the Agreement, but nothing further needs to be said about that here because his Honour rejected the allegation and there is no cross-appeal or notice of contention in relation to that rejection.

THE PRIMARY JUDGE’s CREDIBILITY FINDINGS

66    Some 84 paragraphs of the reasons of the primary Judge were concerned with the credibility of Mr Stewardson, Mr Gorman and Mr Green as witnesses in the case. As will appear, his Honour swept aside virtually all of their evidence that might have been of any value to the appellants in factually controversial areas of the case. From the tenor of his Honour’s reasons, evidence that was against interest or uncontroversial appears to have been accepted. Necessarily, in this part of his reasons the primary Judge effectively made findings of fact in a number of significant areas that were then later applied in his Honour’s disposition of the respondents’ various claims.

67    The primary Judge said that, although he had “thought long and hard before reaching this view”, he was “drawn to conclude that Mr Green’s, Mr Stewardson’s and Mr Gorman’s evidence was quite unreliable”. His Honour said:

In their affidavits Mr Stewardson, Mr Gorman and Mr Green each purported to present a comprehensive account of the development of the proposal to abolish positions and terminate the employment of the affected employees. In cross-examination each of them confirmed that this was so. However, each of their carefully constructed affidavits disguised rather than illuminated the decision-making process. Amongst other things, it became clear in cross-examination that each of them had not disclosed important documents and decisions, omitting matters which were contrary to the thrust of [the Company’s] case. In my view each of them did so deliberately.

68    As an example of these deliberate omissions, his Honour noted that each of these witnesses had failed to disclose documents that showed that in April, May and June 2014, the first three months of the operational review, Mr Gorman, Mr Stewardson and Ms Ragen –

… approached the proposal to abolish positions on the understanding that, before implementing forced redundancies, [the Company] was obliged to:

(a)    offer voluntary redundancies in relation to Daywork Appointed positions such as Mr Giddings’ and Mr Rosewarn’s positions to see whether suitable vacancies might be created into which they could be swapped; and

(b)    investigate all avenues to avoid forced redundancies including by a reduction of contractors, that is, ascertain whether there was suitable contractors’ work into which the affected employees might be placed….

As to the second aspect, his Honour found that, at the time, there was no suggestion that the Company should restrict its consideration to contractors engaged on a full time and permanent basis. His Honour said that “they” (presumably Mr Gorman and Mr Stewardson) did not disclose that they initially thought that there were likely to be suitable positions within the Company, or in contractors’ work, into which Mr Giddings and Mr Rosewarn might “potentially have been redeployed”.

69    The primary Judge expressed the view that the evidence “tends to show” that Mr Green had access to the senior managers’ documents through shared links on the Company’s computer network, and that he was aware of his senior managers’ approach. However, neither he nor the senior managers disclosed the relevant documents or decisions in their affidavits. His Honour continued:

For example none of them disclosed:

(a)    the Scenario Planner prepared by Mr Gorman in May 2014 which tends to show that he thought that within [the Company] there were five suitable positions for Mr Giddings and one suitable position for Mr Rosewarn (if such positions became vacant through offers of voluntary redundancy). Nor did any of them disclose that the Scenario Planner indicates that Mr Gorman thought that there were three suitable contractor roles for Mr Giddings and one for Mr Rosewarn (as well as two “Project/Non EA positions”);

(b)    the OOR Report which was the central document in planning and documenting the Operational Review. This was a significant omission because the second and third draft OOR Reports in July 2014 show a critical change in [the Company’s] approach to the proposed abolition of positions. They reveal that, from that date, [the Company] approached the proposed abolition of positions on the basis that:

(i)    voluntary redundancies would not be offered in relation to Mr Giddings’ and Mr Rosewarn’s positions; and

(ii)    the consideration of reducing contractors would be limited to contractors engaged on a full-time and permanent basis (when there were no such contractors).

None of them disclosed or explained this critical change in their affidavits and Mr Green did not disclose that his decision to abolish the positions and terminate the employment of the affected employees involved this critical change. In my opinion they sought to disguise that fact.

70    The primary Judge pointed out that these witnesses did not disclose that the final draft OOR report of 16 October revealed that there had been no material change in the proposal since late July. His Honour expressed the view that:

… they sought to conceal the fact that by the 1 August meeting Mr Green had been presented with a comprehensive and essentially complete proposal to abolish the relevant positions, and that the proposal did not materially change over the next four months.

His Honour said that to have revealed “this draft report” (presumably the third draft OOR report) would have seriously weakened the Company’s contention that it had provided timely consultation. The failure of these witnesses to disclose that report “significantly reduced the credibility of their testimony”.

71    His Honour continued:

Further, when it suited Mr Stewardson, Mr Gorman and Mr Green they were exact in their recollection as to the dates of the relevant events. However, when it did not suit them they only offered a broad range of dates for a particular event or occurrence, such as “between July 2014 and late October 2014”. They took that approach even though the relevant events occurred only about six months before issue of the proceedings. I do not accept that their recollection was so limited and in some instances I consider they were prevaricating.

72    His Honour said that these witnesses were not frank in their evidence about the dates upon which Mr Green made the decisions to abolish the positions of Mr Giddings and Mr Rosewarn, and at least one Administration Assistant position, and to terminate the employment of Mr Giddings and Mr Rosewarn rather than to redeploy them into “any suitable vacancies created through offers of voluntary redundancy” or by reducing contractors. His Honour found that, except for “some refinements which were not material”, those decisions had been made by Mr Green on or about 1 August 2014.

73    The primary Judge then turned to a detailed consideration of the credibility of each of Mr Stewardson, Mr Gorman and Mr Green.

74    As to Mr Stewardson, the primary Judge noted that he had said in his affidavit that he worked closely with Mr Gorman and Ms Ragen to identify ways in which the company could achieve efficiencies and reduce costs. His Honour noted that the thrust of Mr Stewardson’s evidence was that he carefully examined each position in the engineering team and identified particular positions that could potentially be consolidated or removed while ensuring that the Company could meet its operational requirements, and that, as part of that process, he proposed the abolition of the Long Term Planner position, the Facilities Maintenance Engineer position, and other positions. His Honour inferred that Mr Stewardson informed Mr Green of the positions proposed to be abolished early in the operational review. His Honour noted that it was uncontentious that, at the meeting on 1 August 2014, he joined in the recommendation that Mr Giddings’ position, Mr Rosewarn’s position and at least one of the Administration Assistant positions be abolished.

75    The primary Judge noted Mr Stewardson’s evidence that he made his recommendation to abolish the relevant positions in good faith and after careful consideration, doing so because they could be abolished while still allowing the Company to meet its short and long term operational requirements, and that Mr Green was the decision maker. His Honour noted that Mr Stewardson “corroborated Mr Green’s account that he did not make the decision to proceed with the proposal to abolish positions until October 2014.” His Honour noted that the gist of Mr Stewardson’s evidence was that the recommendation in relation to Mr Giddings’s position was not actuated in any way by Mr Giddings’ union roles and/or his industrial activities, and that no part of the reasons for recommending the abolition of his position, or Mr Green’s reasons for deciding to terminate Mr Giddings’ employment, included his union role and/or his involvement in industrial activities.

76    The primary Judge said that he “found Mr Stewardson’s evidence unreliable”, adding:

Notwithstanding that he said that his affidavit was a full account of the relevant decision making process, he failed to disclose important documents and important parts of that process, in my view deliberately. His evidence was implausible in light of the contemporaneous documents and the surrounding facts and circumstances and I give it little or no weight.

77    Under the heading “Mr Stewardson’s failure to disclose important documents and matters”, the primary Judge dealt first with Ex A4 (see para 19 above). His Honour noted Mr Stewardson’s evidence, under cross-examination, that that presentation was created between June and October 2014. But he had not made mention of it in his affidavit. His Honour did not accept that Mr Stewardson’s memory was “so poor” that he was unable to be more specific about the timing of the creation of this presentation: in his Honour’s own view, it was “likely that he prepared the presentation in about July 2014”. His Honour noted that Mr Stewardson prevaricated when explaining the ‘Nirvana’ chart, but when pressed he conceded that it showed his view that, ideally, Mr Giddings would not be employed in his engineering team. His Honour said: “This was contrary to the thrust of his evidence that he did not have an adverse view about Mr Giddings’ work at the terminal or his union role and industrial activities”. His Honour said that Mr Stewardson “tried to downplay” the importance of the presentation by describing it as a “thought proposal document” and by saying that it was for his own consideration, but his Honour held it to be improbable that Mr Stewardson would have prepared the presentation for his own use rather than just preparing a set of notes. His Honour noted that Mr Stewardson accepted that Mr Gorman had prepared some of the organisation charts in the presentation, and that he (Mr Stewardson) had “offered no cogent explanation” as to why Mr Gorman’s charts would have been included in his presentation if it was prepared only as a “thought proposal” document for his own use. His Honour considered it to be likely that Mr Stewardson provided the presentation to Mr Green and the other senior managers through a shared link. On this aspect, his Honour concluded:

In my view he failed to disclose the presentation in an attempt to avoid disclosing his real view about Mr Giddings. I have little doubt that he considered Mr Giddings’ Union roles and/or industrial activities were a real impediment to the better operation of the terminal.

78    The primary Judge dealt next with Mr Stewardson’s failure to disclose the scenario planner (see para 15 above) in his affidavit. His Honour noted that this document had been prepared by Mr Gorman in June 2014. Mr Stewardson said that he first saw it between June and October 2014 as part of a presentation regarding cost savings. His Honour did not accept that Mr Stewardson’s “memory was so poor”, and expressed the view that he (Mr Stewardson) was “prevaricating in providing that broad timeframe”. His Honour held it to be likely that Mr Stewardson saw the scenario planner “in about July 2014”. His Honour noted that, when Mr Stewardson was pressed as to why he had failed to mention the Scenario Planner in his affidavit, “he hedged to an extent”. His Honour held it to be likely that he had not disclosed it because it showed that Mr Gorman was “open to redeploying employees in Daywork Appointed positions into vacancies created through offers of voluntary redundancy and by reducing contractors, and that he had identified some potential avenues to avoid the forced redundancies of Mr Giddings and Mr Rosewarn.”

79    The primary Judge dealt next with Mr Stewardson’s failure to disclose the OOR report in his affidavit, notwithstanding that it was the primary planning document in the operational review. His Honour noted that the second and third draft OOR reports showed that, by late July 2014, Mr Gorman and Ms Ragen (with input from Mr Stewardson) had prepared a comprehensive and essentially complete proposal to abolish the positions of Mr Giddings, Mr Rosewarn and two Administration Assistants, and which recommended that the Company “make critical changes in its approach to its obligations under the Agreement”, namely, not to make offers of voluntary redundancy in relation to Mr Giddings’ and Mr Rosewarn’s positions, and to restrict its investigation of reducing contractors to those engaged on a full time and permanent basis “(when there were no such contractors)”. His Honour continued, “[t]hose changes of approach were vital parts of the decision-making process leading to the termination of Mr Giddings’ and Mr Rosewarn’s employment, yet Mr Stewardson did not disclose them.” His Honour dismissed what he described as Mr Stewardson’s downplaying of his failure to mention the report on the basis that it was produced by Mr Gorman and Ms Ragen, and that he had no input into its content, by reference to Mr Stewardson’s concession, when pressed, that he had reviewed the report at various meetings and that had had some input into it. His Honour added: “He failed to disclose the OOR Report in the context that no other [Company] witness had disclosed it either.”

80    The primary Judge dealt next with Mr Stewardson’s concession under cross-examination that, until late May 2014, he thought that it might be possible to redeploy Mr Giddings into other positions and that he had discussed that with Mr Gorman. These matters had not been disclosed by Mr Stewardson in his evidence-in-chief. His Honour noted that, under cross-examination, Mr Stewardson had also conceded that his consideration of avenues through which Mr Giddings might be redeployed was an important part of the decision-making process. His Honour held it to be likely that Mr Stewardson did not disclose that because it was contrary to the thrust of the Company’s case.

81    The primary Judge next observed that, in Mr Stewardson’s affidavit, he had made no mention of the change in his approach to the obligation to offer voluntary redundancies in relation to Daywork Appointed positions before implementing forced redundancies.

82    The primary Judge next observed that, in Mr Stewardson’s affidavit, he had made no mention of any assessment of the nature of the work undertaken by contractors, or the necessary skills to perform that work, so as to identify any opportunity to redeploy Mr Giddings and Mr Rosewarn into suitable contractors’ work. However, under cross-examination he said that he and Mr Gorman had undertaken that analysis. But his Honour did not accept that Mr Stewardson undertook “any proper assessment of the work performed by contractors or a proper comparison of the necessary skills for that work against Mr Giddings’ and Mr Rosewarn’s skill and competencies”. His Honour held it to be “improbable that he undertook that work when he did not adduce any document to show that he or Mr Gorman did so, and when, from about July, he and Mr Gorman took the view that only contractors engaged on a full time and permanent basis needed to be considered and there were no such contractors.”

83    Under the heading, “Other matters going to the credibility of Mr Stewardson’s evidence”, the primary Judge referred first to an email from Mr Stewardson to Ms Ragen on 16 April 2014 which identified Mr Giddings’ and Mr Rosewarn’s positions amongst those in the engineering team that could be abolished. This proposal, as his Honour described it, included the assumption that “VRs to be offered and accepted based on the stream as per EA” (his Honour quoting from the email). His Honour said that the proposal tended to show that, at the time, Mr Stewardson understood the Agreement to require the Company to offer voluntary redundancies to employees working in the same stream as the employee whose position was abolished. His Honour found: “In my view he sought to avoid disclosing this as it is contrary to the thrust of [the Company’s] case.”

84    The primary Judge dealt next with a statement made by Mr Stewardson in his affidavit that, following a meeting on 2 May 2014, he agreed to review the engineering team’s functions with a view to determining if there were any opportunities to consolidate or to reduce roles within it. His Honour held that evidence to be “implausible” since Mr Stewardson had already reviewed his team’s functions for that purpose on 16 April 2014, and had set out his view in the Organisational Redesign Stage 2 proposal sent to Ms Ragen (see para 10 above). His Honour noted that, under cross-examination, Mr Stewardson tried to defend his evidence by insisting that he did not consider his 16 April 2014 proposal to be a detailed one, but he then conceded that he had not subsequently prepared a more detailed proposal. In his Honour’s view, Mr Stewardson “tried to paint a picture of the proposal to abolish positions being developed later than it in fact was, probably in an effort to support [the Company’s] argument that it had provided timely consultation.”

85    The primary Judge dealt next with a statement made by Mr Stewardson in his affidavit that, in June 2014, Mr Gorman gave him an amended organisational chart and asked him for his comments in relation to the positions to be abolished. His Honour noted, however, that Mr Stewardson had already provided Mr Gorman with his views on the positions to be abolished in his 16 April 2014 proposal, and that he had conceded in cross-examination that the organisational charts that Mr Gorman gave him included those that he himself (Mr Stewardson) had prepared. His Honour took the view that Mr Stewardson “sought to leave the impression that the proposal to abolish positions was developed later than it was.”

86     The primary Judge next referred to the summary which Mr Stewardson prepared in mid-July 2014 (being the document referred to in para 20 above). His Honour noted that it included the following passage under the heading “Background”:

Our business systems (in particular our [enterprise agreement]) create a culture of role protection first rather than business improvement. A culture so engrained that no consultative change management model will achieve cost reduction across an expedient timeframe. Our change management process must revert to a “just do it” model, which then allows people learn [sic] new approaches to “survive” in the new paradigm created.

His Honour noted that Mr Stewardson “initially prevaricated” as to what he meant in this passage, but then conceded that he thought that the consultation process in the Agreement would not allow the Company to make necessary workplace changes in a timely way. His Honour said: “His prevarication was most likely an attempt to avoid disclosing his view, because it was contrary to [the Company’s] case that it provided genuine consultation.”

87    The primary Judge next observed that Mr Stewardson had cut and pasted some text from his earlier “Organisational Redesign Stage 2” document (see para 10 above) into the summary document (see para 20 above), but he omitted the assumption that “VRs [are] to be offered and accepted based on the stream as per EA”. In cross-examination Mr Stewardson said that he did not include that assumption because he did not think it was relevant to his discussion with Mr Green. His Honour found that explanation to be “implausible”. According to his Honour, “the obligation to offer voluntary redundancies was an important matter”, and it must have been clear that the decisions not to offer voluntary redundancies in relation to Mr Giddings and Mr Rosewarn’s positions, and to restrict the investigation of reducing contractors, meant that it was inevitable that their employments would be terminated if their positions were abolished. His Honour held it to be “more likely” that Mr Stewardson did not include his earlier assumption “because he knew by then that Mr Green had decided that [the Company] would not offer voluntary redundancies in relation to their positions.”

88    As to Mr Gorman, the primary Judge commenced by referring to his evidence-in-chief that, in the context of the operational review, he selected the positions of Long Term Planner, of Facilities Maintenance Engineer and of Administration Assistant (two positions, at that stage) for abolition because they were the most appropriate to be abolished, that his recommendation had nothing to do with Mr Giddings’ union roles and/or his industrial activities, and that the decision to abolish the three positions and to terminate the employment of the three affected employees was made by Mr Green. His Honour noted, however, notwithstanding that Mr Gorman had said that his affidavit was a full account of the decision-making process which led to the abolition of the three positions and the resulting termination of employments, that “it became clear in cross-examination that he had not disclosed a number of important documents and important parts of the decision-making process.” His Honour also found Mr Gorman’s evidence “implausible when considered against contemporaneous documents and in light of the surrounding facts and circumstances.” His Honour found Mr Gorman’s evidence to be “unreliable”, and gave it “little or no weight”.

89    Under the heading, “Mr Gorman’s failure to disclose important documents and matters”, the primary Judge noted that Mr Gorman did not disclose in his affidavit the document he prepared in June 2014 titled “Review of the obligations regarding workforce reductions” (see para 14 above). His Honour considered this to be an important part of the decision-making process because it tended to show that, at the time, Mr Gorman understood the Agreement to require the Company “to offer redeployment and voluntary redundancies before implementing forced redundancies” and “to investigate all available avenues to avoid forced redundancies including by reducing contractors”. It also tended to show that Mr Gorman thought there were “potentially available avenues to avoid the forced redundancies of Mr Giddings and Mr Rosewarn”. His Honour held it to be “likely that Mr Gorman did not disclose this document because it was contrary to [the Company’s] case.”

90    The primary Judge next dealt with Mr Gorman’s failure to disclose his preparation of the Scenario Planner in June 2014. His Honour regarded that failure as “significant” because Mr Gorman was the author of the document, and he conceded in cross-examination that his preparation of it was an important step in the operational review. The document tended to show that, at the time, Mr Gorman understood the Agreement to require the Company to redeploy employees into “any suitable vacancies created through voluntary redundancy or by reducing contractors (without limiting that consideration only to full time and permanent contractors)”, and to reveal Mr Gorman’s view at the time that Mr Giddings and Mr Rosewarn had “suitable skills and competencies for redeployment into various positions … (if they became vacant through offers of voluntary redundancy) or into contractors’ work.” His Honour referred to Mr Gorman’s attempt, in his evidence, to “downplay” the significance of the Scenario Planner by saying that it dealt with the possibility of redeploying potentially affected employees by reference to what he (Mr Gorman) described as “possible options that the employee felt they might be suitable for redeployment to.” Mr Gorman had said in evidence that, when he was developing the Scenario Planner, he was anticipating the positions to which people might think they could be redeployed, rather than considering where people might actually be redeployed. His Honour regarded this evidence as “implausible”, and gave his reasons for that conclusion. He considered it to be likely that Mr Gorman did not disclose the Scenario Planner because it was contrary to the Company’s case.

91    The primary Judge next dealt with Mr Gorman’s failure to disclose the OOR report in his affidavit, something which his Honour considered to be particularly important because the report was the primary planning document in the operational review and Mr Gorman was one of its authors. His Honour continued:

This failure occurred in the context that no other [Company] witness disclosed it either, and in my view his omission was deliberate. His affidavit purported to be a full account of the decision-making process, as he confirmed in cross-examination, but by not disclosing the main report planning and documenting the review his evidence regarding the decision-making process was materially incomplete. The draft OOR reports throw a quite different light on [the Company’s] decisions and the decision-making process.

His Honour held it to be likely that Mr Gorman did not disclose the first draft of the OOR report because it tended to show that, at the time, he understood the Agreement to require the Company “to redeploy the affected employees into suitable vacancies created through offers of voluntary redundancy (without limiting that only to the Administration Assistant positions) or by reducing contractors (without limiting its consideration only to full-time and permanent contractors)”; and because it tended to show that he thought there were likely to be avenues for the redeployment of Mr Giddings and Mr Rosewarn. His Honour held it to be likely that Mr Gorman did not disclose the second and third drafts of the OOR report because they showed that, in July 2014 there was a “critical change” in the Company’s approach to its obligations under the Agreement, which had the effect that it was inevitable that Mr Giddings and Mr Rosewarn would lose their jobs rather than be redeployed if their positions were abolished; and because they revealed that, by 1 August 2014, Mr Green had been provided with “a comprehensive and essentially complete proposal to abolish the relevant positions” and would, therefore, have seriously undermined the Company’s contention that it provided timely consultation to the Union. His Honour added that Mr Gorman was “alive to the risk that his failure to disclose the OOR report could damage his credibility” because he “tried to downplay his role in the OOR report, and initially testified that his contribution to the first draft OOR report was just by amending matters of form from a document he obtained from Illawarra Coal” whereas, under further cross-examination, he conceded that he contributed to the substance of the report, but without providing any detail in that regard. His Honour noted that it was only when Mr Gorman was taken through each section of the first draft, one by one, that he admitted that he had written almost all of it. According to his Honour, this did him no credit. Mr Gorman then sought to leave the impression that his input into the OOR report was confined to the first draft, but, as his Honour found, he later accepted that he also had input into the second draft. His Honour held it to be likely that he played a significant role in the preparation of each draft of the report, and that each iteration reflected his views at time.

92    The primary Judge next mentioned Mr Gorman’s failure to disclose that, in late June 2014, he advised Mr Green that the Company should not offer voluntary redundancies in relation to Daywork Appointed positions, because it would reduce the cost savings that could be achieved by forced redundancies. His Honour considered that this was an important step in the decision-making process leading to the termination of Mr Giddings’ and Mr Rosewarn’s employment, as Mr Gorman himself acknowledged in cross-examination. His Honour noted that Mr Gorman “offered no cogent explanation for his failure to disclose it”. His Honour held it to be likely that he did not do so “in an effort to avoid disclosing that a desire to save costs underpinned a recommendation which, on its face, was inconsistent with the view he held, at the time, of [the Company’s] obligation to offer voluntary redundancies.”

93    Under the heading, “Other matters going to the credibility of Mr Gorman’s evidence”, the primary Judge referred first to what he described as Mr Gorman’s concession that, when he prepared the “PKCT Operational Review summary paper” in June 2014 (see para 13 above), he was not concerned to avoid forced redundancies. His Honour held that this was “against the thrust of his evidence” that he had investigated all avenues for the redeployment of Mr Giddings and Mr Rosewarn, but that there were no suitable positions in the employ of the Company or in contractors’ work.

94    The primary Judge next referred to Mr Gorman’s evidence that, through August and September 2014, he began to develop a “consultation plan” (his Honour’s inverted commas) to assist in the Company’s consultation with the Union. His Honour found this evidence improbable, given Mr Gorman had prepared a consultation plan and timetable on 2 July 2014 in the first draft OOR report. His Honour saw this evidence as “an attempt to paint a picture of the proposal to abolish positions having been developed later than it actually was, probably in support of [the Company’s] case that it provided timely consultation.”

95    The primary Judge next said that he “found implausible” Mr Gorman’s evidence about an email which he sent on 9 December 2014 to Mr Green and other managers, relating to the then ongoing consultation process. The email included the following:

… perhaps the “decision” on Thursday should be the “decision” to nominate the time for the voluntary redundancy to close (perhaps by 9am Friday) with a view to finalising any redundancies from this group on Friday, with any formal letter of redundancy to be issued on Friday. For the potentially impacted employees that the Company does not take through a voluntary redundancy process (i.e. LTP and FME roles), the “decision” on Thursday should be the “decision” to make those potentially impacted employees redundant, with any formal letter of redundancy to be issued Thursday.

In his evidence, Mr Gorman said that his repeated use of inverted commas around the word “decision” was merely a reference to a specific decision concerning the abolition of the Long Term Planner and Facilities Maintenance Engineer positions, which was yet to be decided. But his Honour said:

Standing alone I would not give Mr Gorman’s repeated use of inverted commas much significance but viewed against the surrounding facts the email tends to show Mr Gorman’s appreciation of the legal significance of when [the Company] could be said to have made the relevant “decision” to abolish positions. It is likely that he put the word “decision” in inverted commas because there were no real decisions left to be made.

96    His Honour next mentioned Mr Gorman’s reference, in his affidavit, to Ms Ragen’s “Operational Review – May 2014” presentation (see para 11 above) which contained a proposal to abolish positions in the engineering team (including those occupied by Mr Giddings and Mr Rosewarn) and envisaged that Mr Giddings could be redeployed to other work. His Honour noted that, in cross-examination, Mr Gorman initially said that he was uncertain as to who prepared the presentation, but he later accepted that it was prepared by Ms Ragen, and said that she prepared it independently from him. His Honour “found it implausible that there was any uncertainty in his mind as to whether Ms Ragen prepared the presentation, and improbable that she prepared it independently from him when he was the manager in charge of the operational review.” His Honour held it to be likely that Mr Gorman sought to distance himself from the indication in the presentation that Mr Giddings could potentially be redeployed.

97    The primary Judge referred next to Mr Gorman’s statement in his affidavit that, in early June 2014, he prepared the “PKCT Operational Review summary paper” (see para 13 above) in which he outlined his preliminary thoughts on proposals to save labour costs. His Honour expressed the view that the paper tended to show that he understood the Agreement to require the Company to offer voluntary redundancies before implementing forced redundancies, but that he considered that this requirement was inefficient and/or costly. His Honour noted that, in cross-examination, Mr Gorman tried to “talk down” the importance of the paper by saying that he had prepared it for his own purposes and that he did not give it to anybody else; and that he could not recall discussing with Mr Stewardson the positions that could be abolished in the engineering team before he prepared the document. His Honour expressed the view that Mr Gorman’s evidence in this regard was “implausible”. He considered it unlikely that he would propose the abolition of positions in the engineering team without first discussing that with Mr Stewardson. His Honour also noted that the paper was endorsed with a claim that it was prepared for the purpose of obtaining legal advice, and that Mr Gorman said that he did not so endorse the paper himself. Accepting that, his Honour’s conclusion was that “he must have given access to the document to someone else which points away from it having been prepared only for his own purposes.”

98    The primary Judge referred next to evidence given by Mr Gorman under cross-examination that, in late June 2014, he recommended to Mr Green that voluntary redundancies should not be offered outside the finance/administration team because that would have reduced cost savings. Mr Gorman said that he did not tell Mr Green that he considered that Mr Giddings and Mr Rosewarn were capable of performing a range of other roles within the engineering team, because he was not asked by Mr Green, and because he thought that it would not be relevant to Mr Green’s decision. His Honour found that evidence to be “implausible”. His Honour found that Mr Gorman must have known that Mr Green needed to form a view as to whether Mr Giddings and Mr Rosewarn had suitable skills and competencies to undertake other positions, because that was an important step in the Company “complying with the obligations to use redeployment and voluntary redundancies before implementing forced redundancies and to investigate all avenues to avoid forced redundancies.” His Honour thought that it was “difficult to see why Mr Gorman would recommend against offering voluntary redundancies in relation to Mr Giddings’ and Mr Rosewarn’s positions because that would save costs, if they could not have been redeployed in any event because they did not have suitable skills.” His Honour considered it to be more likely that Mr Gorman told Mr Green that, while Mr Giddings and Mr Rosewarn were capable of undertaking other positions, they should not be “swapped” into those positions because it would mean lower cost savings.

99    As to Mr Green, the primary Judge commenced by making it clear that he “largely” accepted his evidence that there were genuine operational reasons for proposing the abolition of the Long Term Planner, Facilities Maintenance Engineer and one or two Administration Assistant positions, and that the abolition of those positions was appropriate because of the cost savings and efficiencies that could be achieved as a result, and the ability of other employees to absorb those functions; and setting out, in detail, the business case for the abolition of the three positions. But his Honour noted that the Union’s case did not centre on the proposition that the Company’s business needs did not justify abolition of the affected positions.

100    His Honour then referred to Mr Green’s evidence that the final decision on the abolition of the positions was his, that he did not make a decision until mid-October 2014, and that even that was not a “final” decision, because, at that point, “he only decided to advance the proposal to abolish positions subject to consultation with the Union” (his Honour’s emphasis). His Honour referred to Mr Green’s evidence that there was genuine consultation with the Union over the period 2-10 December 2014, that, throughout that process, he kept an open mind to the concerns and alternative views expressed by the Union and that it was not until after consultation was complete that he decided to abolish the positions of the three affected employees and to terminate their employments. His Honour noted Mr Green’s denial of having had any animus towards Mr Giddings, and his denial “that any part of the reasons for his decision to terminate Mr Giddings’ employment included his Union roles and/or his industrial activities.”

101    His Honour continued:

However, although [Mr Green’s] affidavit purported to be a full account of the decision-making process (which he confirmed in cross-examination) he failed to disclose some important documents and important parts of the decision-making process. In my view his failure was deliberate. Amongst other things his evidence was implausible when considered against the contemporaneous documents, and in the light of the surrounding circumstances and other evidence which I prefer. I also found his evidence that he did not have an adverse view of Mr Giddings to be implausible. I concluded that his evidence was unreliable and I give it little or no weight.

102    Under the heading, “Mr Green’s failure to disclose important documents and matters”, the primary Judge first said that Mr Green did not disclose that he saw Ms Ragen’s “Operational Review - May 2014” presentation (see para 11 above) prepared for a meeting on 23 May 2014. While he accepted that Ms Ragen provided him with a version of the document, and that he discussed it with her, he said that he could not recall the date she did so. But his Honour held it to be “implausible” that Mr Green did not know approximately when he was provided with the presentation and had a discussion with Ms Ragen about it and “improbable” that Ms Ragen had given him access to it later than the end of June because, as his Honour reasoned, by 2 July “it would have been superseded by the first draft OOR report”. His Honour said that Mr Green “offered no cogent explanation for his failure to disclose that he saw this presentation and that he discussed it with Ms Ragen.”

103    The primary Judge next noted that Mr Green had not disclosed the fact that, before he made his presentation to the annual general meeting of the Lodge on 4 July 2014, Mr Gorman had provided him with a revised organisation chart which indicated the abolition of a number of positions, including Mr Giddings’ position. Under cross-examination, Mr Green accepted that the provision of this chart to him was “relevant because it showed when particular information came to his attention.” His Honour held it to be “plainly relevant to whether [the Company] provided timely consultation”, yet Mr Green “offered no cogent explanation for his failure to disclose it.”

104    The primary Judge referred next to Mr Green’s failure to disclose the OOR report. Under cross-examination, he accepted that he was provided with a draft of the report in early July 2014, and said that that was when he first became aware of the detail of the proposal to abolish positions. In his Honour’s view, however, it was “likely that he saw each draft OOR report through a shared link on [the Company’s] computer network and that he saw the first, second and third draft OOR reports in July 2014.” His Honour noted Mr Green’s evidence that he understood from the report that his senior managers were recommending the abolition of positions which included those of Long Term Planner and Facilities Maintenance Engineer, and that no voluntary redundancies were proposed to be offered in relation to those positions. His Honour noted that Mr Green’s failure to disclose the OOR report “occurred in the context that no other [Company] witness disclosed it either”. His Honour added, “in my view it was not just a mistake.” Mr Green did not disclose the report, even though it was the main report planning and documenting the operational review, and it revealed “the critical change in [the Company’s] approach to its obligations under the Agreement.” His Honour then said: “In my view his failure was deliberate.”

105    His Honour noted that Mr Green had conceded that his receiving and reading the OOR report was an important part of the decision-making process and that its subject was a “very significant matter” (his Honour’s quotation) for his consideration, “and he offered no cogent explanation for not disclosing it.” His Honour expressed the view that it was likely that Mr Green did not disclose the report “for essentially the same reasons as Mr Gorman, including that the draft reports tend to show the critical change in [the Company’s] approach to its obligations under the Agreement, that the senior managers thought there were potentially available avenues for the redeployment of Mr Giddings and Mr Rosewarn, and that by 1 August he had received a comprehensive and essentially complete proposal to abolish the relevant positions.” His Honour considered that the second and third draft OOR reports undermined Mr Green’s evidence that the Company provided the Union with timely and genuine consultation.

106    Under the heading “The timing of Mr Green’s decisions”, the primary Judge said that he found Mr Green’s evidence on that subject “implausible”. His Honour noted that Mr Green had said in his affidavit that he did not make a decision at the time he received the recommendation to abolish positions on 1 August 2014, that he gave the recommendation consideration over the next two and a half months, that he met with the senior managers in relation to the proposal on several further occasions in the period until mid-October, that it was not until mid-October that he decided “to advance the proposal” to abolish the relevant positions (subject to any further considerations raised during the consultation process), and that it was not until 10 December 2014, after consultation with the Union, that he decided to limit the consideration of reducing contractors, to abolish the three affected positions and to terminate the employment of the three employees. His Honour found this evidence “improbable”. Although Mr Green’s evidence was corroborated by Mr Gorman and Mr Stewardson, his Honour “found their evidence unreliable too”.

107    The primary Judge then dealt sequentially with the unreliability of Mr Green’s evidence about the timing of his decisions (a) not to offer voluntary redundancies in relation to the abolition of Mr Giddings’ and Mr Rosewarn’s positions, (b) to restrict the Company’s investigation of reducing contractors, and (c) to abolish the positions of Mr Giddings, Mr Rosewarn and one Administration Assistant and to terminate their employments.

108    Under the heading “Mr Green’s evidence as to when he decided not to offer voluntary redundancies”, the primary Judge commenced by noting Mr Green’s evidence that he decided not to offer voluntary redundancies in relation to Mr Giddings’ and Mr Rosewarn’s positions in mid-October, or near the end of October, 2014. His Honour regarded this evidence as “implausible”. His Honour said that, in his affidavit, Mr Green had not disclosed that, in late June 2014, he was advised by Mr Gorman that voluntary redundancies should not be offered in relation to Mr Giddings’ and Mr Rosewarn’s positions because it would reduce cost savings. His Honour noted that it was not until Mr Green was cross-examined that he said that he was aware from about July 2014 of the proposal not to offer voluntary redundancies in relation to those positions. According to his Honour, although Mr Green conceded that this was an important issue, “he offered no cogent explanation” for his failure to mention Mr Gorman’s advice. Mr Green said that he could not remember discussing that issue with Mr Gorman in late June, but his Honour preferred Mr Gorman’s evidence as to the date of discussion. His Honour continued: “I doubt that Mr Green had forgotten discussing that important question with Mr Gorman and in my view he sought to conceal the early date upon which he first considered not offering voluntary redundancies.”

109    His Honour opined that it was unlikely that Mr Green would have taken until mid-October to decide this issue, when he had received Mr Gorman’s advice not to offer voluntary redundancies in late June, and on 1 August he received the same recommendation from his senior managers. Mr Green “offered no persuasive explanation” as to why he took such a long time, and the Company adduced “no contemporaneous document which shows that Mr Green ever considered taking a different course” from that which was recommended to him. His Honour noted that the contemporaneous documents showed that, from about mid-July, Mr Gorman, Mr Stewardson and Ms Ragen approached the proposed abolition of positions on the basis that the Company would not offer voluntary redundancies in relation to Daywork Appointed positions. His Honour noted the absence of any contemporaneous document which showed that Mr Green queried this approach or that he was still giving this issue his consideration after 1 August 2014. His Honour thought that, if Mr Green was undecided as to whether voluntary redundancies would be offered, it would have been “necessary for somebody to undertake a comparative assessment of Mr Giddings’ and Mr Rosewarn’s skills and competencies against the skill sets required in other possibly suitable positions”.

110    But the Company “put forward no cogent evidence, and did not adduce any contemporaneous document, to show that such an assessment was properly undertaken at any point between 1 August and late October”. His Honour’s conclusion was that it was “likely” that Mr Green made the decision not to offer voluntary redundancies in relation to Mr Giddings’ and Mr Rosewarn’s positions on or about 1 August 2014.

111    Under the heading “Mr Green’s evidence as to when he decided to limit [the Company’s] consideration in relation to reducing contractors”, his Honour referred to Mr Green’s evidence-in-chief that it was not until 10 December 2014 that he decided that, in seeking to avoid forced redundancies, it was appropriate to restrict the Company’s consideration of reducing contractors to those who were engaged on a full time and permanent basis. His Honour found that evidence “implausible”. His Honour noted that Mr Green did not disclose the fact that his senior managers had initially taken a different approach on this question, changing that their approach in July 2014. The Company had not adduced “any contemporaneous document” showing that Mr Green queried this change in approach, “even though it made it inevitable that Mr Giddings’ and Mr Rosewarn’s employment would be terminated (if their positions were abolished)”. His Honour added that, if this matter remained undecided in the period from 1 August 2014 until 10 December 2014, he would have expected such a document to have existed. His Honour held that, unless the senior managers knew that Mr Green took the same view as they did, it was likely that they would have sought some clarity on this important issue from Mr Green. But the Company “did not adduce any cogent evidence or a single contemporaneous document” which showed that they sought such clarity.

112    His Honour next referred to the evidence of Mr Gorman to the effect that the decision to limit the consideration of reducing contractors’ work resulted from legal advice, authorised by Mr Green in June 2014, which clarified the Company’s position under the Agreement. His Honour inferred that the advice was received in about July 2014, and it was “more likely than not” that Mr Green made up his mind at around that time, rather than in December 2014. His Honour said that Mr Green must have known that restricting the Company’s consideration of reducing contractors, to the point that there were no contractors to be considered, in combination with his decision not to offer voluntary redundancies in relation to their positions, “meant that it was inevitable that Mr Giddings and Mr Rosewarn would not be redeployed.” His Honour considered it to be “inherently unlikely that Mr Green would have deferred the important decision as to whether redeployment was open until the very day that he decided to abolish their positions” and that it was “much more likely that he decided that issue earlier.”

113    His Honour next reasoned that, if the reality was that it was not until 10 December 2014 that Mr Green made his decision about restricting the Company’s consideration of reducing contractors, he could not have known at the time he terminated Mr Giddings’ and Mr Rosewarn’s employment whether they could have been redeployed into contractors’ work. His Honour said:

Mr Gorman’s advice to Mr Green about suitable contractors’ work for their redeployment was provided on the assumption that only full time and permanent contractor roles were required to be considered and therefore, if he had not already made up his mind, Mr Green did not know what suitable non-permanent contractor roles might be available for their redeployment. It is improbable that Mr Green would have left his decision on the possibility of their redeployment to the same time as his decision on terminating their employment.

It was also significant, in his Honour’s view, that Mr Gorman operated on the assumption that he need only consider full time and permanent contractor roles. This tended to show that he understood that Mr Green had already decided to limit the Company’s consideration of contractors’ work.

114    Finally under this heading, his Honour expressed the view that the Company’s construction of the Agreement, under which its obligation to investigate reducing contractors was restricted to contractors engaged on a full time and permanent basis, was “somewhat contrived”. He said that Mr Green “must have known that construction was not the intention of the parties at the time they entered into the Agreement”. It followed that, unless, from 1 August until 10 December, the senior managers understood that Mr Green had already decided to adopt that approach it is unlikely that they would have continued to advance a proposal based upon “this artificial construction”.

115    The primary Judge’s conclusion was that it was “likely” that Mr Green made the decision to limit the Company’s consideration of reducing contractors’ work on or about 1 August 2014.

116    Under the heading “Mr Green’s evidence as to when he decided to abolish the affected positions”, the primary Judge commenced with the observation that Mr Green’s evidence as to “precisely” when he made the decision to propose the abolition of the affected positions was “somewhat uncertain”: in his affidavit he had said that he made the decision in mid-October 2014, but under cross-examination he said that he made the decision on 29 October or in early November. His Honour, however, expressed the view that both versions given by Mr Green were “implausible”. His Honour’s first reason for that view was that he “found Mr Green’s evidence generally unreliable”. His Honour also found Mr Green’s uncertainty about “the exact date of his decision” difficult to understand, when the proposal to abolish positions “involved a great deal of managerial planning and was executed with military precision”. Mr Green swore his affidavit in February 2015, and, as his Honour put it, “it is unlikely that his memory was so reduced by the effluxion of time that he could not accurately recollect the date that he made that important decision.”

117    His Honour considered that Mr Green’s decisions not to offer voluntary redundancies in relation to Mr Giddings’ and Mr Rosewarn’s positions and to restrict the Company’s consideration of reducing contractors were “inextricably intertwined” with his decision to abolish those positions. His Honour’s view as to the unreliability of Mr Green’s evidence on the timing of the two first-mentioned decisions also affected his view on the reliability of his evidence on the third-mentioned issue.

118    His Honour said that it was “improbable” that the change in the Company’s approach to voluntary redundancies and the investigation of reducing contractors would have been included in the OOR report – as it was in the first, second and third draft reports in July 2014 – without Mr Green’s approval. The second and third draft reports showed that an essentially complete proposal was before Mr Green at the meeting on 1 August 2014, and there was no material change in the proposal between then and 2 December 2014. His Honour noted that the Company had not adduced “a single contemporaneous document” to show that, in the period from 1 August 2014, Mr Green “took any step to consider or evaluate whether to offer voluntary redundancies or whether to restrict the investigation of reducing contractors, both of which were central to the proposal”, or to show that Mr Green took a different view to the recommendations he received from his senior managers. Mr Green had advanced “no cogent explanation for why he might have chosen not to follow the recommendations he received.” His Honour also pointed out that the later contemporaneous documents, such as those attached to Ms Ragen’s email of 23 October 2014, “tend[ed] to show fine tuning or finessing of a plan already made, or the taking of steps to implement a decision already made.”

119    Finally on this aspect, his Honour adverted to what he described as Mr Green’s pretence, at the final consultation meeting with the Union on 10 December 2014, that he was still considering the Union’s views when, on his own evidence, he had already decided to terminate the employment of Mr Giddings, Mr Rosewarn and one Administration Assistant. In his Honour’s assessment, this indicated a preparedness on Mr Green’s part “to mislead in relation to the timing of his decision to terminate the employment of the affected employees.”

120    His Honour’s conclusion was that it was “likely” that Mr Green made his decision to abolish the positions, and to terminate the employment of Mr Giddings, Mr Rosewarn and at least one Administration Assistant, on or about 1 August 2014. It was also “likely” that the only significant decision he left until mid-October, late October or early November 2014 was when to announce the proposal to abolish positions.

121    By contrast with Mr Stewardson, Mr Gorman and Mr Green, the primary Judge found Mr Tonini to be a reliable witness, and he accepted his evidence. His involvement in the operational review began in June 2014 and, at an early date, he informed Mr Gorman that it was only feasible to reduce his team by one Administration Assistant position. For reasons that were unclear to his Honour, the proposal initially went forward on the basis that two Administration Assistant positions were to be abolished but, “by the time Mr Green says he decided to advance the proposal in October”, it went forward on the basis that only one such position was proposed to be abolished. His Honour accepted the evidence which Mr Tonini gave regarding “the consultation process relating to the proposed abolition of one Administration Assistant position, the offers of voluntary redundancy made to each of the three Administration Assistants, and the process used to select Ms Arber for compulsory redundancy when none of them took up the offer.”

122    The primary Judge next dealt with what he described as the Company’s “failure to call Ms Ragen”. The important part she played in developing and documenting the proposal to abolish positions was not referred to in the affidavits of Mr Stewardson, Mr Gorman or Mr Green. The Company had offered “no cogent explanation” as to why Ms Ragen was not called, in which circumstances his Honour inferred “that her evidence would not have assisted it”, referring in this context to Jones v Dunkel (1959) 101 CLR 298.

THE PRIMARY JUDGE’S DISPOSITION OF THE RESPONDENTS’ CLAIMS

123    The primary Judge then turned to the various claims which the respondents had made in the proceeding before him, commencing with their allegation of a failure to consult as required by cl 7.1 of the Agreement. His Honour rejected the appellants’ submission that the proposals under consideration by the Company did not amount to a “major change” within the meaning of that clause. He rejected their submission that the obligation to consult under cl 7 arose only subsequent to the making of the operative decision in question, holding that consultation was required when the Company was considering making the change. He rejected their submission that the requirement to consult had been satisfied when Mr Green addressed the annual general meeting of the Lodge on 4 July 2014. He held, as a fact, that the Company had not consulted as required by cl 7 at or before the relevant decisions were made, as his Honour found, on or about 1 August 2014. Nor had it consulted at any time between then and 2 December 2014. As to the period between 2 and 10 December 2014, his Honour held that the process in which the Company then engaged was “too late, not genuine, and it did not provide the necessary information or allow sufficient time for proper consultation to occur.” His Honour provided detailed reasoning in support of this conclusion, and I shall return to it below.

124    The primary Judge next turned to the respondents’ allegation of a failure to comply with cl 13.5 of the Agreement. His Honour rejected the appellants’ submission that the obligation under cl 13.5.1 to make use of “redeployment and voluntary redundancy” did not extend to offering other employees (ie those whose positions were not redundant) the opportunity to quit their jobs to allow the employees who were redundant to take those jobs, thereby remaining in employment. In a passage of which the appellants were critical in the Full Court, the primary Judge summarised the working of cl 13.5.1 as follows:

In so “managing manning levels” [the Company] was obliged to:

(a)    seek expressions of interest in voluntary redundancy from either:

(i)    all employees; or

(ii)    that subset of employees as might reasonably take part in a process of voluntary redundancy. There is no requirement for [the Company] to seek expressions of interest from persons who are employed in positions that an affected employee could not fill because he or she does not have suitable skills and competencies to properly perform that role;

(b)    consider the expressions of interest received and decide whether any of the affected employees had suitable skills and competencies to properly perform the work in the role of any employee who expressed interest; and

(c)    if one or other of the affected employees had suitable skills and competencies to do so, it was obliged to select persons for voluntary redundancy from those who had expressed an interest, and place one or other of the affected employees into that position.

On any view, the Company did not discharge an obligation described in these terms. His Honour considered, and rejected, various arguments advanced by the Company in response to the respondents’ case under cl 13.5.1, in the course of which he held, as a fact, that Mr Giddings and Mr Rosewarn had the skills and competencies which were suitable to the proper performance of a number of positions other than those which they occupied before 10 December 2014.

125    His Honour’s conclusion under cl 13.5 was as follows:

In my view by not undertaking a proper comparative assessment of the skills and competencies of Mr Giddings and Mr Rosewarn, and by failing to seek expressions of interest in voluntary redundancy in relation to their positions, [the Company] breached its obligations to make use of redeployment and voluntary redundancy prior to implementing any forced redundancies, and to investigate all avenues to avoid their forced redundancies.

It will be noted that the terms in which his Honour expressed this conclusion echoed both those of cl 13.5.1 and cl 13.5.3. As to the latter, his Honour added a further paragraph to his reasons in which he referred to Mr Giddings’ evidence that the positions of Team Coordinator and Backup Coordinator were advertised as vacant on 26 September 2014, and that those vacancies were filled on 3 November 2014. His Honour held that this tended to show that, after the decision to abolish Mr Giddings’ and Mr Rosewarn’s positions was made in August 2014, but before it was announced, there were two vacant positions into which they could have been redeployed. But, by the time the proposal was announced, the vacant roles had been filled. His Honour held that, in taking this approach, the Company “again failed to explore all avenues to avoid forced redundancies and it failed to comply with cl. 13.5.”

126    The primary Judge held that the Company had not contravened cl 13.5 of the Agreement in relation to Ms Arber, and there is no cross-appeal or notice of contention against that holding.

127    The primary Judge next turned to so much of cl 13.5.3 as related to the reduction of contractors (in the context of Mr Giddings and Mr Rosewarn). It was uncontroversial that the Company made a conscious decision not to consider the reduction of contractors, save where the contractors to be reduced were engaged on a full-time and permanent basis. There were no contractors so engaged. His Honour rejected the appellants’ case that the Company was permitted by the clause to limit its investigations in this way. From that point, it was inevitable that his Honour would uphold the respondents’ allegation of contraventions of cl 13.5.3 in the cases of Mr Giddings and Mr Rosewarn. Although, theoretically, the same conclusion would have applied in the case of Ms Arber, his Honour was not satisfied that an investigation such as complied with the clause would have revealed the existence of any role into which she might have been redeployed.

128    The primary Judge turned next to the respondents’ claim under Pt 3-1 of the FW Act in relation to Mr Giddings. His Honour noted that it was common ground that it had been Mr Green who had made the decision to terminate the employment of Mr Giddings on account of redundancy, and that it was, therefore, his reasons that required consideration under ss 340 and 346. The circumstances, personal to Mr Giddings, that his Honour considered were relevant in the respondents’ case were his “roles” as president of the Lodge and as a representative of employees at the workplace. In the latter respect, his Honour identified a number of disputes in the prosecution of which Mr Giddings had taken a leading role. His Honour found that Mr Giddings “was a forceful and somewhat uncompromising advocate for the interests of the Union and its members and effective in his roles of Lodge President and employee representative.”

129    That brought his Honour to a consideration of the reasons advanced by the Company for Mr Green’s decision. His Honour noted that, in his evidence, Mr Green “had consistently denied that Mr Giddings’ union roles and industrial activities formed any part of the substantial and operative reasons for the decision to terminate his employment.” This evidence was “essentially corroborated” by Mr Stewardson and Mr Gorman.

130    The Company had first pointed to the deteriorating conditions in the coal industry and to its decision in 2013 not to proceed with the project to upgrade the terminal (see para 5 above). It was said on behalf of the Company that the position of Long Term Planner had been created in anticipation of an upgrade of terminal capacity and, since that project was no longer being pursued, the duties performed in that position could be performed by other employees with minimal operational disruption. The Company had also submitted that the review by Mr Stewardson and Mr Gorman of functions within the engineering team had demonstrated that the position of Long Term Planner was underutilised, and/or that there was insufficient work to keep Mr Giddings busy on a full-time basis, thereby providing scope for the removal of that position. In his Honour’s words, the Company’s case in this area “boil[ed] down to the proposition that there was a substantial business case for Mr Green’s decision to make the Long Term Planner position redundant.” His Honour accepted that case. However, as his Honour saw it, that did not answer the allegation that the substantial and operative reasons for Mr Green’s refusal to offer voluntary redundancies in relation to Mr Giddings’ position and to restrict the consideration of reducing contractors (the inevitable result of which was that Mr Giddings could not be redeployed and that his employment would be terminated) included his Union roles and/or his industrial activities.

131    The Company had next accused the Union (in his Honour’s words) “of trawling through Mr Giddings’ history of involvement in industrial activities looking to use them as reasons why [the Company] had decided to terminate his employment”, and pointed out that, in some instances, the disputes on which the Union relied were many years ago and, in other instances, the issues were resolved or were no longer pursued. The Company had also submitted that the Union’s “list of industrial disputes” was selective and incomplete. In broad terms, his Honour accepted the Company’s submission in these respects, and expressed the view that Mr Giddings’ involvement in a major industrial dispute in 2012 was “the most relevant to Mr Green’s adverse view of Mr Giddings because of his Union role and/or his industrial activities.” Although other union officials had also actively engaged in industrial activities, his Honour considered it relevant Mr Giddings was the most senior, and the most effective, union official on site.

132    His Honour accepted the Company’s contention that there was no evidence of any adverse action previously having been taken against Mr Giddings.

133    The Company had argued that, over the same period as that in respect of which the Union relied on Mr Giddings’ involvement in industrial activities – since 2008, when Mr Green commenced as General Manager – Mr Green had “provided Mr Giddings with substantial further education through payment support for a Masters of Business degree, had promoted him to the highest grade under the Agreement, and had treated him as integral and trusted in the job redesign process in 2013”. His Honour held it to be “clear on the evidence” that the Company had taken those steps. His Honour also noted the Company’s submission that Mr Green had “treated Mr Giddings with respect” in a number of circumstances to which his Honour referred. But his Honour “[did] not attribute much significance” to these matters.

134    His Honour referred next to the Company’s submission that the Union had continued to have an active role in industrial issues at the terminal since the termination of Mr Giddings’ employment, and that it continued to meet with Union representatives in relation to various disputes. There was, it argued, no rational basis to assert that the substantial and operative reasons for Mr Green’s decision to terminate Mr Giddings’ employment included his Union roles and/or his industrial activities. His Honour was “not satisfied as to this.” He said that the evidence tended to show that Mr Giddings was “a particularly effective Union representative” and that it was “likely that there was some advantage for [the Company] in Mr Giddings’ absence from the next round of enterprise agreement negotiations.” His Honour added, however, “little turns on that.”

135    The Company’s next argument was that there were no vacant positions into which Mr Giddings could have been redeployed so as to avoid his forced redundancy. The primary Judge accepted that, but added that his decision was not based on the proposition that there were such vacant positions at the time Mr Giddings’ employment was terminated.

136    The Company had referred to Mr Green’s evidence that the Agreement did not require it to make offers of voluntary redundancy in relation to Mr Giddings’ position. His Honour said that he did not “agree” with that. His holding was that the Agreement did impose such a requirement. The Company had referred to Mr Green’s evidence that it was not operationally efficient or reasonable to offer voluntary redundancies in relation to Mr Giddings’ position. Neither did his Honour accept that evidence. The Company had referred to Mr Green’s evidence that Mr Giddings did not have suitable skills and competencies properly to perform the work of any other position. His Honour did not accept that submission: the evidence showed that he had “suitable skills and competencies to perform a number of other positions.”

137    The Company had made corresponding submissions about Mr Green’s evidence in relation to contractors. It had submitted that that evidence showed that there were no contractors engaged on a full-time and permanent basis, and therefore no contractors’ work into which it was practical to place Mr Giddings. His Honour’s response to this submission was, “I accept this but it is somewhat beside the point”. Further, his Honour rejected Mr Green’s evidence that he gave proper consideration to the issue of reducing contractors, and that Mr Giddings did not have suitable skills and competencies properly to undertake such work.

138    It had been argued on behalf of the Company that the only basis upon which the Union asserted that Mr Green’s evidence should be disbelieved was that the evidence demonstrated that Mr Giddings’ redundancy was a sham. His Honour rejected that argument. He identified in the Union’s case the contention that Mr Green was motivated by Mr Giddings’ union role and his industrial activities when he refused to offer voluntary redundancies in relation to his position and restricted the investigation of reducing contractors, which had the inevitable result that his employment was terminated.

139    The final aspect of the Company’s submissions mentioned in this part of his Honour’s reasons was the proposition that Mr Green’s evidence about the timing of his decision to terminate Mr Giddings’ employment should be accepted. That was a matter which his Honour had already found against the Company.

140    Under the heading “Consideration regarding the adverse action claim against [the Company]”, his Honour said:

444    I found Mr Green’s evidence unreliable and I need not reiterate my reasons for doing so. While his evidence was essentially corroborated by Mr Gorman and Mr Stewardson their evidence was similarly unreliable and, even taken together, their evidence carries little weight.

445    My view of the unreliability of Mr Green’s evidence, together with my rejection above of many of [the Company’s] contentions, has led me to conclude that [the Company] failed to discharge its onus to show that the substantial and operative reasons for its decision to terminate Mr Giddings’ employment did not include Mr Giddings’ Union roles and/or industrial activities. I find that [the Company] contravened ss 340 and 346 of the Act.

His Honour added that it was “unnecessary to go any further than this”.

141    The next, and penultimate, part of the primary Judge’s reasons dealt with the respondents’ case against Mr Green personally under s 550 of the FW Act. He observed that it was here necessary for the respondents to prove that Mr Green was knowingly concerned in the Company’s contraventions, referring in this respect to para (c) of s 550(2). That was, it seems, the provision upon which the Union relied. His Honour noted that, in this part of the case, the reverse onus provisions of s 361 did not apply.

142    The primary Judge commenced by indicating that he had kept in mind that Mr Green (corroborated to an extent by Mr Gorman and Mr Stewardson) had consistently denied that he had an adverse view of Mr Giddings, that he thought that Mr Giddings and the Union had too much influence at the terminal, and that any part of his reasons for terminating Mr Giddings’ employment included his Union roles and/or industrial activities. But his Honour said: “However, as I have said, I give Mr Green’s evidence (and that of Mr Gorman and Mr Stewardson) little or no weight.” His Honour said that there were “strong grounds to infer that Mr Green’s reasons for the decision to terminate Mr Giddings’ employment included his Union roles and/or industrial activities”; and he set out those grounds.

143    His Honour found that it was likely that the 2012 industrial dispute about the new enterprise agreement led to “a material deterioration in Mr Green’s view of Mr Giddings”, and it was likely that Mr Green “came to see Mr Giddings as a serious impediment to the workplace changes which [he] thought were necessary.” As to that dispute, his Honour noted that negotiations for the new enterprise agreement started in about November 2010 but, despite numerous meetings over the course of 2011, the Company and the Union could not reach agreement. Mr Giddings was a lead negotiator for the Union, and it was, in his Honour’s view, “likely … that Mr Green became frustrated with and resentful of the Union and Mr Giddings.”

144    His Honour said that Mr Green’s “frustration, and a developing antipathy” was to be seen in a confidential briefing paper prepared by him in November 2011 for the directors of the Company. He said:

Approximately one year ago, discussions commenced with employee representatives for an Enterprise Agreement (EA) to replace the current EA. The current EA expired on 30 June 2011.

Over 30 meetings have taken place. Progress on a number of matters has been very slow and employee representatives have conducted their discussions on the basis of conceding nothing, and seeking to add to the regulation contained in the document. Union and employee representatives see the federal industrial relations framework together with the buoyant nature of the resource sector as their time to recoup matters they feel that have been given up in the past. A sense of arrogance is conveyed.

[His Honour’s emphasis.]

His Honour expressed the opinion that Mr Green’s view about union representatives was “likely to have been directed at Mr Giddings to a significant extent.” His Honour’s view was that Mr Green’s evidence denying antipathy towards Mr Giddings was “implausible”.

145    His Honour observed that, in this briefing paper, Mr Green had said that, by November 2011, the Company had reached its “final position”, and had made a final proposal to the Union which was designed to settle the dispute. However, the Union rejected the Company’s final position and, in January 2012, Mr Giddings advocated for employees to take protected industrial action, including by way of consecutive seven-day stoppages. That proposal received overwhelming support. Then Mr Giddings was a leader of the campaign in which the employees took 186 hours of consecutive work stoppages over a three-week period in February 2012. Mr Gorman described this industrial action as “unnecessary and highly disruptive”. His Honour inferred that the lengthy stoppages caused the Company significant losses, and regarded it as “likely that Mr Green came to feel frustration, resentment, and perhaps anger, in relation to Mr Giddings’ Union role and industrial activities.” His Honour found Mr Green’s testimony that he had no ill feeling towards Mr Giddings “implausible”.

146    Continuing to trace the trajectory of the 2012 dispute, his Honour said that, shortly after the stoppages, the Company made further concessions to the Union and “the dispute resolved”. The parties signed the Agreement in March 2013, “but it was not what [the Company] had wanted.” It had sought an agreement which provided increased “flexibility” and a “significant improvement in organisational agility” (his Honour’s inverted commas). His Honour noted that Mr Stewardson had said that these expressions referred to a need to change the “team system” at the terminal, and that the Company wanted a change to “individual accountability rather than team accountability”. His Honour inferred that Mr Green saw these changes as important, but Mr Giddings vigorously opposed them, and in the finish Mr Green did not achieve the changes he wanted. His Honour noted that the Agreement also provided for 4.5% annual wage increases over the term of the Agreement and for a payment of 4c/t into the employee entitlements fund. His Honour referred to Mr Green’s admission that the Company was dissatisfied with the Agreement and to Mr Stewardson’s description of it as “restrictive” (his Honour’s inverted commas). By contrast, his Honour said, Mr Giddings described it as “a significant win”. His Honour inferred that Mr Green felt that the Company was forced into the unsatisfactory Agreement by the Union’s industrial campaign, in which Mr Giddings played a lead role.

147    His Honour found Mr Green’s denial that he thought that the Union had too much influence on the site to be “utterly implausible”. His Honour referred to the inclusion in the Company’s negotiating protocol for the 2011/12 enterprise agreement negotiations of a “key goal” that employees come to look to the Company, rather than to the Union, as their future. His Honour held it to be “likely that Mr Green developed a materially adverse view of Mr Giddings through his lead role in the 2012 campaign and came to see Mr Giddings’ Union roles and/or industrial activities as a serious impediment to achieving necessary changes at the terminal.”

148    His Honour considered that the annual 4.5% wage increases “were likely to have been particularly galling for Mr Green.” Conditions in the coal industry were seriously deteriorating and, in Mr Green’s view, significant cost savings were required. At the same time the annual wage increases were coming into effect and, in circumstances where Mr Green and the senior managers had themselves agreed to a salary freeze, Mr Giddings advocated against the employees accepting a wage freeze and a 12-month suspension of the regrading of positions. Noting that Mr Green accepted that Mr Giddings was “influential in persuading employees to reject the wage freeze”, his Honour had “little doubt that Mr Green thought that necessary cost savings would be easier to achieve if Mr Giddings was no longer in [the Company’s] employ.” Neither, in his Honour’s view, were these aspects just matters of history at the time that Mr Green was considering the proposal to abolish Mr Giddings’ position and to terminate his employment. In this period, Mr Green was still seeking changes to the “team system”, and still wanted to freeze annual pay increases and to suspend the regrading of positions. In this area his Honour referred to Mr Stewardson’s “Organisational Redesign Stage 2” proposal sent to Ms Ragen in April 2014, (see para 10 above) where it was argued that the “current restrictive EA” should be changed to “allow discretionary effort and time at work to be controlled by individuals based on performance management feedback”; to Mr Green’s attempt, on 4 July 2014, to have the employees agree to a variation of the Agreement, in which context he accepted that Mr Giddings was influential in the decision to reject the proposal and in consequence of which Mr Green informed the board of the Company that the proposal had no chance of success because the Union executive did not recommend it; to the frustration with the pace of change at the terminal demonstrated in Mr Stewardson’s July 2014 summary (see para 20 above) here inferring that “Mr Green had a similarly dismissive approach to the requirement for consultation”; and to Mr Stewardson’s statement that the Company was seeking changes to the team system, and to performance management, in the enterprise agreement negotiations which were scheduled to commence in April 2015. His Honour added:

That Mr Giddings was not seen in a positive light can be seen in Mr Stewardson’s June 2014 “Nirvana” chart which revealed his view that, ideally, Mr Giddings would no longer be employed at the terminal.

In my view Mr Giddings’ continued resistance to what Mr Green saw as necessary changes was likely to have fuelled Mr Green’s frustration and resentment about his Union roles and/or industrial activities. Again, I have little doubt that Mr Green thought that the necessary changes would be more easily achieved if Mr Giddings was no longer employed at the terminal.

149    His Honour next turned to the ways in which Mr Giddings had “treated” Mr Green, opining that they “were likely to have added fuel to Mr Green’s frustration and resentment.” On an “amongst other things” basis, his Honour set out particulars of two occasions on which Mr Giddings’ language was rude about or disrespectful of Mr Green and which, in his Honour’s view, were “likely to have caused feelings of resentment and perhaps anger.”

150    His Honour held that the evidence tended to show that Mr Green was determined not to allow Mr Giddings to be redeployed into other work, whether by offers of voluntary redundancy or by reducing contractors. His Honour expressed the view that “there was no real difficulty” for Mr Green in understanding that cl 13.5 of the Agreement required the Company to offer “redeployment and voluntary redundancies” before implementing forced redundancies, but Mr Green was determined not to do so. Nor, in his Honour’s view, was there “any real difficulty” for Mr Green in understanding that the obligation to investigate all avenues to avoid forced redundancies, including by the reduction of contractors, required the Company to make a greater effort than it did. His Honour held that Mr Green’s decision to consider reducing contractors only where they were engaged on a full time and permanent basis (when none were) “took a somewhat contrived approach to the Agreement.” Mr Green “must have understood that was not the intent of cl 13.5.3.”

151    The primary Judge said:

The effect of Mr Green’s approach to cl 13.5 was to effectively guarantee that Mr Giddings’ employment would be terminated upon the abolition of his position. In my view Mr Green was determined to ensure that the potentially available avenues for Mr Giddings’ redeployment were given no proper consideration or closed off, most likely because he resented the power and influence Mr Giddings wielded through his Union roles and industrial activities and saw his continued employment as an impediment to necessary workplace changes.

In the result, his Honour inferred that Mr Green’s substantial and operative reasons for terminating Mr Giddings’ employment included his Union roles and/or his industrial activities. His Honour upheld the Union’s case under s 550 of the FW Act.

152    That left the matter of the relief to which the respondents were entitled as a result of the primary Judge’s conclusions. The only substantial aspect with which his Honour dealt in his reasons of 8 October 2015 and in his orders of 18 November 2015 was reinstatement. His Honour ordered the reinstatement of Mr Giddings and Mr Rosewarn. In Mr Giddings’ case, this was based both on the Company’s contraventions of ss 340 and 346 of the FW Act and on its contravention of s 50 constituted by the Company’s breaches of the Agreement, “primarily” because it had not made use of “voluntary redundancy” before imposing forced redundancy and had not investigated all avenues to avoid Mr Giddings’ forced redundancy including by reducing contractors (references to cll 13.5.1 and 13.5.3 respectively). His Honour expressed the view that it was likely that Mr Giddings would have been redeployed into other work at the terminal had the Company complied with the Agreement. The same conclusion was expressed in the case of Mr Rosewarn. His Honour declined to make a reinstatement order in favour of Ms Arber.

153    His Honour said:

While there may be difficult issues associated with reinstatement of Mr Giddings and Mr Rosewarn to positions which have been abolished I am satisfied that reinstatement is appropriate. I will hear the parties about any issues that arise.

154    When the matter was again listed before his Honour on 11 November 2015, the Company did not raise any practical issues in relation to the reinstatement of Mr Giddings and Mr Rosewarn. As his Honour said in his reasons of 18 November 2015:

Instead counsel for the respondents said that he could not assist the court in relation to any practical difficulties and submitted that the court had no power to order reinstatement. Counsel declined to make submissions as to the form of orders concerning reinstatement because, as counsel put it, there was no position into which Mr Giddings and Mr Rosewarn could be reinstated.

The orders which the primary Judge made on that occasion were, accordingly, made without input from the appellants.

CLAUSE 13.5.1 OF THE AGREEMENT

155    I have referred to the construction which the primary Judge gave to cl 13.5.1 of the Agreement at para 124 above. It was submitted on behalf of the appellants that his Honour was in error in this regard, and that the clause did not operate in circumstances in which a single, identified, position was to be, or had been, abolished. It was submitted, rather, that the clause was –

… concerned with the circumstance where the following sequence of events would occur:

(a)    [the Company] decides that it needs to reduce the “manning levels” by a specified number of employees (whether across the workforce or in a particular stream …);

(b)    prior to implementing any forced redundancies of that number of employees, voluntary redundancies would be offered across the workforce or across the relevant classification as appropriate;

(c)    if the number of volunteers for voluntary redundancies equalled or exceeded the “manning reduction” identified in relation to the whole workforce or the particular stream, then there would be no requirement for any forced redundancy.

It was said that cl 13.5.1 was concerned not with the treatment of an employee but with the process which the Company was obliged to use in managing manning levels before implementing forced redundancies. Some emphasis was placed on the plural form of the latter word.

156    The respondents supported the construction which had attracted itself to the primary Judge. They stressed that the word “any” carried the sense of “one or more”, and that cl 13.5.1 operated as a precondition to the Company implementing a single forced redundancy.

157    There is nothing in the appellants’ emphasis upon the plural form of the word “redundancies” in cl 13.5.1. The clause has the potential to apply just as much in a situation in which one position is to be lost as in a situation where a multiplicity of positions are to be lost. But the appellants’ main point is a more substantial one, and cannot be deflected by a grammatical focus upon the connotation of the word “any”. At base, the appellants make a distinction between a circumstance in which one or more stand-alone positions is or are to be lost and a circumstance in which the number of employees engaged in the same or similar work, across the workforce or a stream, is to be reduced. They say that cl 13.5.1 operates in the second situation to require the Company to offer all of the employees concerned the opportunity to volunteer to be made redundant. They say that the clause does not operate in the first situation at all.

158    The primary Judge took the view that there was “no real difficulty in construing the meaning of cl. 13.5.1” in relation to the matter of voluntary redundancy. Commencing with the text of the provision (and relying in this respect on Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46 [47]), his Honour said that the literal meaning of the clause was “unambiguous”. His Honour could see “nothing in the clause, its context, purpose or the consequences of a literal or grammatical construction, or having regard to the context in which the Agreement was made which indicates that the clause should be read in a way that does not correspond with its literal meaning”. He said that the clause required the Company, in managing manning levels to suit its business needs, “to make use of redeployment and voluntary redundancy before imposing forced redundancy upon any affected employee.”

159    With respect, I would say two things about this aspect of his Honour’s reasons. The first is that, contrary to what might appear from the emphasis in the passage last quoted above, the real issue did not relate to the matter of temporality as between the Company making use of redeployment and voluntary redundancy, on the one hand, and imposing forced redundancy on an employee, on the other hand. Rather, the issue related to the content of the words “voluntary redundancy”. The second thing is that the literal meaning of cl 13.5.1 was not, it seems, so clear that his Honour was able to allow the clause to speak for itself: immediately after the passages in his reasons with which I am presently dealing he found it necessary to set out in his own words what it was that the Company was obliged to do. Implicit in that elaboration was an understanding of those problematic words which, with respect, went beyond anything to be found in their literal meaning.

160    In its strict connotation in an industrial context, “redundancy” is a situation in which the employer no longer wants the work hitherto performed by a particular employee to be done by anyone: Termination, Change and Redundancy Case (1984) 9 IR 115 at 128; Finance Sector Union of Australia v Commonwealth Bank of Australia (2001) 111 IR 241 at 271 citing Bray CJ in R v The Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-operative Ltd (1977) 16 SASR 6 at 8. In that sense, it may be said that the job or position, rather than its incumbent, is “redundant”. It may be accepted, however, that a looser, and quite commonplace, connotation would have it that the employee whose work is no longer required is to be regarded as “redundant”. In National Tertiary Education Union v La Trobe University [2014] FCA 1330 at [27]-[28], Tracey J said:

The word “redundancy … is not a concept of clearly defined and inflexible meaning”: Amcor [Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241] at 249 (Gleeson CJ and McHugh J). Nonetheless, it is clear enough, in an industrial context that “the emphasis [is] upon a ‘job’ becoming redundant rather than a worker becoming redundant”: Amcor at 259 (Gummow, Hayne and Heydon JJ). If a workers’ [sic] job becomes redundant the consequence may be that the worker will be “retrenched” in the sense that his or her contract of service will be terminated.

Notwithstanding this orthodoxy it is not uncommon, in industrial parlance, to encounter references to “voluntary redundancy” and “compulsory redundancy” where what is being referred to is termination of employment following a redundancy; the employee may agree with the employer to bring his or her contract of employment to end or the employer might choose, unilaterally, to terminate the contract on the ground that it no longer wishes the work, formerly done by the employee, to be done by anyone.

[His Honour’s emphasis]

Although the judgment was reversed on appeal, the majority in the Full Court noted, without criticism, the distinction to which Tracey J had referred: National Tertiary Education Union v La Trobe University [2015] FCAFC 142 at [82] and [118]-[119].

161    In cll 13.5.1 and 13.5.3 of the Agreement, it is clear that the expression “forced redundancies” refers to the non-consensual termination of the employment of employees. The term “compulsory redundancies” in cl 13.5.4 is to be similarly understood. By contrast, the term “redundancy situation” in that clause refers to a situation in which the job being performed by an employee no longer exists, or there are more employees engaged in a particular area of work than are justified by the amount of work required to be done by them. The term “still exists” refers to the contemplation that the requirements of cl 13.5.1 and 13.5.3 will first have been complied with, but that it was not possible, by those means, to avoid a “redundancy situation”.

162    But what does the term “voluntary redundancy”, in cl 13.5.1, mean? The “redundancy” here being referred to, self-evidently, is the second kind mentioned by Tracey J: the termination of the employment of an employee whose job has become redundant. Being “voluntary”, such a termination is done with the agreement of the employee. This might occur, for example, where the occupant of a stand-alone position is informed that the position is to be abolished but, possibly through the medium of the process referred to in cl 13.5.2, he or she negotiates timing and other adjectival matters with the Company in return for making his or her departure from employment the subject of consensus. More obviously, perhaps, voluntary redundancy might occur where there are two or more (even many more) employees engaged on the same or similar work and the amount of that work is insufficient to sustain the employment of that number of employees. One or more of them might be prepared, in effect, to “volunteer” to be dismissed on account of redundancy, an outcome which, for someone not committed to a long-term future with the Company, would be attractive to some extent under cl 13.5.5 of the Agreement and s 83-170 of the Income Tax Assessment Act 1997 (Cth) (“the ITA Act”). In the present case, it will be recalled that the three Administration Assistants were given the opportunity to volunteer for dismissal in such a setting, but none did so.

163    It is a characteristic of the senses in which the term “voluntary redundancy” is used, as I have attempted to explain them, that the employment of the employee in question is terminated following the redundancy of his or her position, or of a number of positions including his or her own. It is that circumstance which makes the termination a “redundancy” in the second of the senses referred to by Tracey J. In other words, albeit “voluntary”, such a termination is still on account of “redundancy”. By contrast, the effect of the primary Judge’s ruling in the present case was that the Company was obliged to solicit volunteers from employees whose positions were not redundant to have their employments terminated under the pretence that it was done on account of redundancy. Like Walton V-P (dissenting) in Director-General, Department of Health (NSW) v NSW Nurses’ Association (2011) 209 IR 49 at 78, I consider that a situation which involves the making of “substantial payments to an employee for accepting voluntary redundancy where the employee’s position ultimately remains extant … is inconsistent with the … general notion of redundancy (whether voluntary or otherwise) ….”

164    Although not directly applicable in the present case, what the FW Act itself says on the subject is of some relevance, considering that it is the Act under which the Agreement was made and approved. In a setting in which a dismissed employee is complaining to the Fair Work Commission that his or her dismissal was unfair, for the dismissal not to have been “a case of genuine redundancy” is an ingredient in the cause of action: s 385(d). Such a case arises where “the employer no longer required the person’s job to be performed by anyone”: s 389(1)(a). If the person’s employment were terminated in circumstances which, his Honour held, were the Company’s obligation under the “voluntary redundancy” provisions of cl 13.5.1, there would not, as I understand the position, have been “a case of genuine redundancy” within the meaning of these provisions.

165    The parties were invited to address the court on the implications of an employee taking what the primary Judge held to be a voluntary redundancy for the calculation of the tax payable on his or her termination payment. That invitation was not accepted. I take it that neither party considered that the taxation treatment of such a payment bore one way or the other on the proper construction of cl 13.5.1. Strictly, that position must be correct, but, for my own part, I would not want the court’s judgment in this proceeding – or in the proceeding before the primary Judge, for that matter – to be the occasion for currency to be given to the perception that the termination of the employment of an employee whose job remained might, because it was characterised as a “voluntary redundancy”, be treated as engaging the terms of s 83-175 of the ITA Act. Indeed, I consider the contrary to be the case: see Weeks v Federal Commissioner of Taxation (2013) 209 FCR 264.

166    It might be said that the meaning of “voluntary redundancy” which I favour may be all very well in isolation, but it gives insufficient recognition to the contribution made by the word “redeployment” in the expression “redeployment and voluntary redundancy” in cl 13.5.1 of the Agreement. Although the matter was not made entirely clear, it is possible that the primary Judge regarded this as a reference to a single process by which someone whose position was redundant was redeployed into a position which was not redundant, the occupant of which was, in turn, either actually or notionally redeployed into the position which was redundant specifically with a view to then being dismissed on account of redundancy. Aside from the matter of the Company’s previous practice in such matters, to which I shall turn next, for this to be treated as the necessary operation of cl 13.5.1 in relevant respects would, if I may say so with respect to his Honour, be to adopt a strained interpretation, one which would, in effect, have the clause regularising, and requiring, a self-evidently artificial stratagem. There is, in my view, no reason to treat the words “redeployment and voluntary redundancy” as referable only to a single process in which the occupants of positions are interchanged in the way described.

167    The redeployment of employees who might otherwise have been dismissed is a long-standing means of accommodating an employer’s existing labour force to the changing needs of its business. It is sometimes referred to as “natural attrition”. The employee who might have been dismissed is redeployed into a position which happens to be vacant, or is about to become so. Thus “redeployment”, in the context of cl 13.5.1, means no more than that the employee who is to be dismissed because of the redundancy of his or her position is able to avoid that outcome because it is feasible to redeploy him or her into another position which is available, vacant and suitable to his or her skills, ability and experience. This was not, however, the present case. There were no other available vacant positions and there could, therefore, have been no redeployment of Mr Giddings or Mr Rosewarn. Unless, that is, some other employee, whom the Company did not desire to retrench, was enticed by the offer of a redundancy termination to quit his or her job, involving work which the Company intended would continue to be done by someone.

168    I turn next to the Company’s previous practice in the area of workforce reductions. The setting for the primary Judge’s consideration of that matter was provided by the observation of Madgwick J in Kucks v CSR Limited (1996) 66 IR 182, 184 that the makers of industrial awards “may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon.” His Honour was concerned with an agreement applicable at a particular site rather than with “the relevant industry”, but that, if anything, made consideration of the local context and history even more relevant to the constructional task in which he was engaged.

169    The primary Judge said:

Mr Giddings said, and I accept, that at various points in his 34 years at the terminal the employer had required a reduction in manning levels because of the operational needs of the business. He said that until the present events any such reductions were achieved by seeking expressions of interest in voluntary redundancy across the terminal. Those who expressed interest were generally accepted for redundancy, and if the duties of that position still needed to be performed then another person would be swapped into the vacant position. Mr Tonini accepted that voluntary redundancies and “job swaps” were previously used at the terminal, as did Mr Green. Before the termination of Mr Giddings’, Mr Rosewarn’s and Ms Arber’s employment, there had never been a forced redundancy at the terminal in the past 34 years.

These findings were not challenged in the present appeal.

170    With respect to cl 13.5.1 of the Agreement specifically, his Honour said:

[T]he Agreement must be construed in the context in which the parties entered into it. The evidence shows that [the Company] had previously used voluntary redundancies to achieve reductions in manning levels and it had had never previously imposed forced redundancies. Construed in this context, cll 13.5.1 and 13.5.3 indicate that forced redundancies are only to be imposed after the possibility of redeployment into vacancies created through offers of voluntary redundancy is explored. In broad terms, forced redundancy is to be a last resort.

This reasoning on the part of the primary Judge was not the subject of any direct criticism on the part of the applicants.

171    The construction of cl 13.5.1 which the primary Judge favoured was, his Honour observed,

… consistent with the importance the parties gave to security of employment in cl 9.1. It provides that “security of employment is important for improving working relationships, trust and cooperation with change”. Construing the Agreement as allowing [the Company] to make Mr Giddings and Mr Rosewarn compulsorily redundant without first seeking expressions of interest in voluntary redundancy to see whether suitable vacancies might arise is inconsistent with the importance the parties gave to security of employment.

As a consideration in itself, I would not place much store by the “consistency” of the problematic clause with another provision, itself wholly aspirational. Each of the presently controversial connotations would find purposive support in cl 9.1, which makes little or no contribution to the resolution of the controversy.

172    Were it not for the force of his Honour’s unchallenged findings, and reasoning, with respect to the past practice of the Company, I would, for the reasons I have given, have upheld the appellants’ submission that cl 13.5.1 did not operate to impose upon the Company an obligation to call for volunteers for redundancy from other employees then occupying positions the duties of which could have been discharged by Mr Giddings and/or Mr Rosewarn. I do not agree with his Honour that the ordinary, literal, meaning of “voluntary redundancy” is such as requires a process of the kind that he identified. But his Honour reinforced his conclusion in that regard with what was, in effect, a perception of a special meaning to be given to this expression, one which grew out of the way manning reductions had been implemented at the terminal for many years before the Agreement was made. Conformably with the authorities to which his Honour referred, an expression of uncertain connotation in such an agreement should be construed consistently with the practice which existed for many years in the area of employment regulated by it.

173    I am persuaded that this was a case in which the primary Judge was justified in having resort to local practice and usage in the construction of the expression “voluntary redundancy” in cl 13.5.1 of the Agreement. It follows that I do not accept the appellants’ submission that his Honour was in error to have held that the clause imposed upon the Company an obligation to offer to employees occupying positions into which Mr Giddings and/or Mr Rosewarn might have been redeployed the opportunity to have their employments terminated as on a redundancy, with a view to putting such redeployment or redeployments into effect.

174    I should follow that conclusion with certain riders. First, I would not endorse, in every detail, the primary Judge’s articulation of the content of the Company’s obligation as set out at para 124 above. What would have been necessary to comply with cl 13.5.1 may be left for another day: in the present case, because the Company took no step at all to offer voluntary redundancies, the respondents’ contravention case was complete. I do not regard this appeal as an appropriate occasion to improve upon the terms in which the parties themselves, in the Agreement, chose to express the Company’s relevant obligation. Secondly, with respect to the question, which may be problematic in individual cases, as to what is required before the position being occupied by another employee should be regarded as an appropriate destination for the employee whose position becomes redundant, I say no more than that, within reason, this would be a matter for the Company. In particular, I would not, with respect, associate myself with the view, which might derive currency from at least some of the observations made by the primary Judge, that the Company would be obliged to consider another position as appropriate in this sense notwithstanding that some period of training would be required before the duties thereof could be performed by the employee being redeployed. Thirdly, while it is self-evident that, as a matter of the construction of the Agreement, an employee who takes “voluntary redundancy” under cl 13.5.1 would be covered by the entitlements set out in cl 13.5.5, it does not follow, and these reasons should not be treated as involving the assumption, that the position of such an employee would necessarily be “genuinely redundant” for the purposes of s 83-175 of the ITA Act (whether or not the redundancy process was preceded, or accompanied, by what was euphemistically described as a “job swap”). Although these reasons should be understood as being entirely agnostic with respect to such issues, I tend to the view that, in many cases at least, the situation imposed upon the parties by the terms of cl 13.5.1 of the Agreement might better be described as an artificial redundancy more so than as a genuine one.

CLAUSE 13.5.3 OF THE AGREEMENT

175    The primary Judge also held that the Company had contravened cl 13.5.3 of the Agreement by failing to investigate whether an avenue for the continued employment of either or both of Mr Giddings and Mr Rosewarn was available by redeployment into a position, or positions, created by the reduction of contractors. As noted earlier in these reasons, his Honour found that the Company had ruled out of consideration any contractor positions which were not both full-time and permanent, and that there were no full-time and permanent contractor positions at the terminal. On appeal, two issues arise. The first relates to the extent of the Company’s obligation under cl 13.5.3 and the second is the factual one of what, if anything, the Company actually did which would amount to an investigation in compliance with that obligation.

176    It was submitted on behalf of the appellants that, since Mr Giddings and Mr Rosewarn were employed full-time, and on what was said to be a “permanent” basis, only contractor positions which had those characteristics were required to be considered in any investigation under cl 13.5.3. The respondents resisted that submission, pointing out that the clause referred only to the nature of the work performed by the contractors of interest, and to the skills and competencies of the employees that might otherwise have to be dismissed on account of redundancy. It was also pointed out by counsel for the respondents that the concept of “permanent” employment was unknown under the Agreement, and that cl 13.5.3 should not, therefore, be construed so as to permit the Company to make such a state of affairs an effective precondition to the alternative required to be investigated.

177    So far as they go, these submissions on behalf of the respondents should be accepted. But it does not follow that the presence at the terminal of any contractor who was performing work that might just as easily have been performed by Mr Giddings or Mr Rosewarn meant that the employment of the latter could not have been terminated on account of redundancy. The Company’s obligation was to investigate the available avenues, and it might have been that, after such an investigation, the Company might have had legitimate reasons not to redeploy them, or one of them, into positions, or a position, the work of which they, or he, could have performed. The contractor role being investigated might, for example, have required only one day’s work each week, or it might, while “full-time” in a sense, have been of a very short duration. If the Company did undertake an investigation of the matter, cl 13.5.3 would not, as it seems to me, replace the Company with the court as the final arbiter of whether the employee concerned would in fact be redeployed into a position made vacant by the reduction of a contractor.

178    It will be apparent that what I have just written is in a number of respects inconsistent with observations made by the primary Judge about the content of the Company’s obligation under cl 13.5.3 of the Agreement. Although, as will directly be apparent, I would dismiss this aspect of the appeal, I should take the opportunity now to indicate that I do not agree with some of those observations. I would not, with respect, associate myself with his Honour’s comments that –

    the obligation under cl. 13.5.3 was not limited to a requirement to investigate all avenues to avoid forced redundancies, but extended to a requirement to take such avenues;

    the obligation extended to a consideration of the suitability of bundling work performed by different part-time contractors into a single position, and/or bundling work performed by different types of contractors, perhaps for different periods of time, into a single position;

    the obligation extended to a consideration of redeploying an affected employee initially into one contractor role and then moving him or her to another contractor role when the first role came to an end, and included an obligation to consider whether it might be suitable to redeploy the employee “back to a position within [the Company] if one had become vacant in the interim”.

179    As to the latter of these three points, it may be, with respect, that his Honour was operating under a misapprehension when he used the expression last quoted above. If, rather than being dismissed on account of redundancy, the employee concerned were redeployed on to work hitherto being carried out by a contractor, he or she would, by definition, still be engaged in a position within the Company. By making that redeployment, the Company would have closed off its obligations under cl 13.5.3 in relation to the employee’s original position (which no longer existed). If, at some later time, the position into which the employee was redeployed itself ceased to exist, there would, at least at the most simplistic level of analysis, thereupon be another redundancy situation with the potential to engage the various provisions of cl 13 of the Agreement. There would be no lingering, unfinished, work for cl 13.5.3 to do in the context of its application to the circumstances of the original redundancy which resulted in the redeployment referred to.

180    It remains to consider the factual issue of what in fact occurred in the present case. It was submitted on behalf of the appellants that the Company had made an investigation of a kind and extent that would satisfy the requirements of cl 13.5.3. For that submission, they relied on the “matrix” referred to in para 46 above. But the primary Judge made no findings as to when, or in what context, this matrix had been prepared. Neither, on appeal, was our attention drawn to any evidence which would supply that deficiency. All his Honour knew of the matrix was that it was prepared by someone who was not called, and was linked to an email dated 3 December 2014. Merely to draw the Full Court’s attention to the matrix as a document does not go close to what would have been necessary to displace the primary Judge’s conclusion that the Company –

… did not undertake any proper comparative assessment of [Mr Giddings’ and Mr Rosewarn’s] skills and competencies to ascertain the viability of reducing contractors and redeploying them into that work, and … so restricted its consideration of reducing contractors that there were no contractors that fell to be considered.

That is to say, his Honour’s finding that an investigation of the kind, and seriousness, contemplated by cl 13.5.3 was not undertaken by the Company has not been shown to have been in error.

CLAUSE 7.1 OF THE AGREEMENT

181    On appeal, it was submitted on behalf of the Company that cl 7.1.a of the Agreement was not engaged in the circumstances of the case because the “change” being proposed – that which involved the abolition of the positions being occupied by Mr Giddings, Mr Rosewarn and Ms Arber – was not a “major change” within the meaning of that provision. The same submission had been made before the primary Judge, and he rejected it for six reasons, namely:

(1)    It was wrong to consider the Company’s obligation to consult only by reference to its decision to abolish those positions and to terminate the employment of the employees concerned. Rather, the Company’s decision to implement forced redundancies without first offering voluntary redundancies in an effort to see whether suitable vacancies arose into which the affected employee could be redeployed, and while restricting its consideration of reducing contractors to contractors engaged on a full time and permanent basis, amounted to “an important change in the way [the Company] approached a reduction in manning levels.” That decision, which involved a “new approach”, was “a major change which operated to reduce the security of employment of employees beyond the three positions immediately affected”, which “had a broad detrimental and significant effect on the conditions of employment at the terminal.”

(2)    The purposes of consultation under cl 7 included the resolution of issues and the avoidance of unnecessary problems by identifying and discussing workplace matters of concern, and an improvement in the level of understanding between management, employees and the Union. It would be inconsistent with this purpose to construe cl 7 such that the Company was not required to consult “in circumstances where its senior managers concede that the proposal to abolish positions involved important changes to [the Company’s] approach to the implementation of forced redundancies.”

(3)    The term “major change” was to be construed consistently with “the Agreement overall”, but most significantly with the provisions of cl 9. Clause 9.2 required the Company to consult with the Union in accordance with cl. 7, “prior to the implementation of any change to manning levels”. Clause 9.3 provided that it was only when consultation under cl. 7 had occurred that the Company might proceed to make an employee redundant. These provisions showed that “the Agreement should be read so that a decision by [the Company] to implement forced redundancies involves a ‘significant change or effect’ under cl 7.1.”

(4)    The importance which the Agreement ascribed to security of employment, apparent from the provisions of cll 9.1, 9.2, 9.5 and 9.7, “confirm[ed] that the Agreement should be construed as treating forced redundancies as a matter that requires consultation under cl 7.”

(5)    Prior to the making of the Agreement, the Company had achieved any necessary reductions in manning by voluntary redundancies, and had not sought to use forced redundancies for that purpose. This pointed to a construction of cl 7 that treated the imposition of forced redundancies as a “major change” having a “detrimental or significant effect”.

(6)    In its submissions, the Company had accepted that, by operation of cll 9.2 and 9.3, it was obliged to consult when a “redundancy situation” existed. It was, therefore, “difficult to see what turn[ed] on [the Company’s] contention about the operation of cl 7.1.” There was “little substance” in the Company’s argument.

182    His Honour’s sixth reason may be put to one side: it does not, with respect, represent a principled consideration of the appellants’ submission that the facts of the present case did not amount to a major change within the meaning of cl 7.1 of the Agreement. Of the remaining five reasons, it will be noted that they involve two broad, and not necessarily consistent, characterisations of what the Company was doing at the terminal in 2014, either of which, in his Honour’s view, would bring the matter within the scope of the clause. The first (in the first and second reasons) would have it that the “change” was a change in the Company’s approach to a situation which required a reduction in manning levels. Here the change could be described as major because of the importance of the change in approach, however many employees may have been involved. The second (in the third, fourth and fifth reasons) would look to the fact that one or more forced redundancies was involved in what the Company did, his Honour taking the view, it seems, that even one forced redundancy was to be regarded as a “major change”. I shall return to a consideration of these characterisations presently. First, however, I propose to consider briefly the genesis of cl 7.1.

183    Clause 7 of the Agreement represents the modern and local iteration, for the Company and its employees at the terminal, of one of the provisions introduced into federal awards as a result of a major test case in 1984: Termination, Change and Redundancy Case (1984) 8 IR 34 and 9 IR 115. In the second of those decisions, the Conciliation and Arbitration Commission (“the C & A Commission”) indicated that it was prepared to introduce a provision which opened as follows (9 IR at 127):

(a)    Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer shall notify the employees who may be affected by the proposed changes and their union or unions.

(b)    “Significant effects” include termination of employment, major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations and the restructuring of jobs. Provided that where the award makes provision for alteration of any of the matters referred to herein an alteration shall be deemed not to have significant effect.

184    A perusal of the C & A Commission’s decisions in 1984 reveals that this was a period when the impact of technological change was of real concern to the trade union movement. The replacement of workers by machines or computers was, it seems, the paradigm case of “major changes” to which these new provisions referred. But it was not the only case and, both then and since, whether a particular situation would come within those provisions turned upon the wording of the provisions themselves. Although the C & A Commission’s clause departed from that sought by the unions insofar as it required the “change” to be “major” – see 8 IR at 99 – there was, in the published decisions, no exposed reasoning to explain this adjustment. In the result, the court is unable to look the genesis of cl 7.1 for any better understanding of the term than is conveyed by the actual words used by the parties: “major change”.

185    As it happens, I would not regard the present as the occasion to go beyond the point of deciding whether the primary Judge was in error to have held that the circumstances leading to the termination of the employments of Mr Giddings, Mr Rosewarn and Ms Arber amounted to “major change” within the meaning of cl 7.1 of the Agreement. In my respectful view, his Honour was.

186    Commencing with the first of the two ways in which his Honour characterised those circumstances, I do not agree that a “change” of this kind would amount to a change to “production, program, organisation, structure, technology, shift arrangements, work organisation or the level of outsourcing”. Only by a very strained reading of the words could the change identified by his Honour be so described. On appeal, counsel for the respondents submitted that the change was to “organisation”, but, save to propound the point, they really advanced no focussed argument as to how it was so. The change identified by his Honour was not, in my view, a change in organisation.

187    As to the second of the two ways in which his Honour characterised the circumstances leading to the termination of the employments of these three employees, again I do not, with respect, agree that the occurrence of a “forced redundancy” makes the underlying, or corresponding, change a “major” one. If many employees were to be made redundant, there may well have been a major change with which those redundancies were associated, but the size and importance of the change would have to be assessed by reference to facts which went beyond, although they may include, the facts of the redundancies. In the present case, it is enough to reiterate that the forced redundancy of three employees out of a workforce of about 98 did not of itself constitute a major change within the meaning of cl 7.1.

188    On appeal, the respondents sought to defend the proposition that there was a “major change” under consideration which engaged cl 7.1 of the Agreement on two bases additional to those favoured by the primary Judge. First, it was said that a major change in the organisation of work in the engineering department was under consideration when Mr Gorman was commissioned to conduct his review, and for at least some months thereafter. It was not to the point that the outcome of the review was that three positions only became redundant. Secondly, it was said that, with the abolition of the positions of Long Term Planner and Facilities Maintenance Engineer, the duties in question were (or, at the time when it was said that the obligation to consult arose, were to have been) redistributed among the other 14 employees in the engineering department, and this would have amounted to a major change in work organisation for them.

189    I would not accept the first of these points. The operational review announced by Mr Green in March 2014 did not, in my view, constitute the consideration by the Company of major change within the meaning of cl 7.1. It was a review only and, until and to the extent that Mr Gorman’s recommendations were accepted - which, according to his Honour, was at about the beginning of August 2014 - the Company as such was not considering anything. From that point forward, something was under consideration, but that thing was the abolition of four positions, subsequently reduced to three. As it seems to me, however wide might Mr Gorman’s review have been at the outset, it was not until the beginning of August 2014 at the earliest that it crystallised into a level of consideration that would engage cl 7.1, and then the change being considered was not “major”.

190    Neither would I accept the second of these points. The primary Judge made no findings of the kind or detail that would be necessary to justify the conclusion that the impact upon other employees of the redistribution of the duties formerly performed by Mr Giddings and Mr Rosewarn, to the extent that there was, or was to be, any such redistribution, amounted to a “major change” within the meaning of clause 7.1 of the Agreement. On appeal, counsel for the respondents undertook no analysis of the evidence at trial sufficient for the Full Court to make its own findings on this subject.

191    It remains to consider the contribution which cl 9 of the Agreement made to the respondents’ case that the Company had been in breach of cl 7. In their Originating Application, the respondents did not allege that the Company had contravened cl 9. In presently relevant respects, their case was confined to cl 7. Notwithstanding that limitation, the cases of both sides on appeal were conducted by reference to the premise that the respondents’ case involved an allegation that the Company had fallen short in compliance which its consultation obligations under the Agreement, whether arising under cl 7 or under cl 9. The appellants’ own submissions dealt with both, and made no point as to the more confined nature of the respondents’ case as formally constituted. As noted above, the primary Judge’s reasons drew upon the terms of cl 9 in support of his conclusion that there had been a contravention of cl 7 and, while I would not approach the matter in quite that conceptual framework, it seems clear that, in substance, an allegation of a contravention of cl 9 was part of the respondents’ case below.

192    The respondents defended the primary Judge’s conclusion as to the Company’s liability for failing to consult by reference to cl 9.2 of the Agreement. It was said that the mandatory obligation set out in the third sentence of this clause arose in the circumstances which existed at the terminal in the second half of 2014. The “circumstances” there referred to were those covered by the second sentence, that is, that the termination of the employments of Mr Giddings and Mr Rosewarn particularly, but also, I took it, Ms Arber, amounted to changes to “the numbers of employees per shift or the skills components of teams”. The appellants contested that proposition, submitting that the second sentence was not engaged in the circumstances. Given that the second sentence was, in effect, a proviso to the first, there is a view that the correctness of this submission would leave the first sentence fully operational in relation to these terminations. However, no suggestion was made on behalf of the respondents that the first sentence was, of itself, the source of any relevant obligation, and nothing further needs to be said with respect to such a possibility.

193    Turning to the appellants’ submissions as to the applicability of the second sentence in cl 9.2, they argued that Mr Giddings and Mr Rosewarn were not shift workers and, therefore, that the termination of their employments did not give rise to a change to the numbers of employees per shift. On behalf of the respondents, it was said that this involved an overly meticulous distinction which was quite out of place in an instrument of this kind, and that Mr Giddings and Mr Rosewarn were employed on “Day Shift”. The resolution of the contest thus defined requires a brief examination of the terms of the Agreement, particularly to the extent that it makes a distinction between shift workers and day workers.

194    Such a distinction is not is not made in cl 10 of the Agreement (titled “Employment”), which distinguishes only along the axis of full-time, part-time, fixed term and casual employment (and, in relation to each, probationary employment). The matter of present interest is more directly addressed in cl 14 (titled “Work Arrangements”), which provides for the hours of work (and related matters) of “Flexible Dayworkers”, “Flexible Shiftworkers” and apprentices. By the interpretation provisions of the Agreement, a “Flexible Dayworker” is “an Employee who works the notional Daywork roster but can adjust their starting or finishing times and the duration of the shift to meet individual, team and operational requirements”; a “Flexible Shiftworker” is “an employee who performs Shiftwork, but can move to an alternative shift on the same or another agreed specified day to satisfy individual, team and operational requirements”; and “Flexible Shiftwork” is “work carried out according to a flexible shift process with shifts of Employees who work the necessary Roster arrangements to cover operational requirements”. The rates of pay of employees at the terminal are covered by cl 15.2.8 of the Agreement, and it distinguishes between “day rates” and “shift rates”. The latter go no higher than Grade 6, while the former extend to Grade 9.

195    Under cl 14.1.3 of the Agreement, a “Day Shift” is the 12-hour period from 7 am to 7 pm worked by flexible shiftworkers. There is nothing in the Agreement to suggest that someone who is not a shiftworker might ever work, or would be employed on, “Day Shift”.

196    Mr Giddings and Mr Rosewarn were working in “Daywork Appointed” positions. The agreement makes a distinction between such positions and “Shiftwork Appointed” positions. Employees in positions of the former kind are classified in Grades 6-9, while those in positions of the latter kind are classified in Grades 5-6. There are various other special provisions which apply to these “appointed” positions, but the detail of them is unnecessary to explore further in the present context.

197    It is, in my view, as clear as may be that Mr Giddings and Mr Rosewarn were not employed on “Day Shift” as submitted by counsel for the respondents. They were not shift workers at all within the meaning of the Agreement. To the extent that cl 9.2 picked up the terms of cl 7 where there was to be “a change to the number of employees per shift”, it was not engaged by the Company’s proposals in 2014 with respect to them or the positions which they occupied.

198    It was also submitted on behalf of the respondents that the termination of the employments of Mr Giddings and Mr Rosewarn amounted to a “change to … the skills components of teams” within the meaning of the second sentence in cl 9.2 of the Agreement. It was said that the removal of those two employees, with their skills, from the engineering team amounted to a reduction in the skills component of that team. The difficulty with this submission, however, is that the primary Judge made no such findings of fact as would be necessary to sustain it. Indeed, other than setting out (twice) the terms of cl 9.2, his Honour said nothing on this subject at all. The respondents’ submission, in the circumstances, must come down to the proposition that the termination of the employment of any employee will necessarily change the skills components of the team of which he or she was a member. Such a proposition should not, in my view, be accepted. The “skills components” of a team of employees might well remain unchanged notwithstanding that there are, after a termination, fewer of them. And, absent a factual case established by the respondents, we cannot assume that this was not the situation in the engineering team after the termination of the employments of Mr Giddings and Mr Rosewarn.

199    In my reasons above with respect to the respondents’ case under cl 7 of the Agreement, I have concentrated on the circumstances of Mr Giddings and Mr Rosewarn. That reflected the emphasis which characterised the cases conducted by both sides on the appeal. I do not understand it to be put by either that any different considerations would arise with respect to the termination of Ms Arber’s employment, and I would apply my conclusions to her circumstances also.

200    For the above reasons, I would uphold the appeal to the extent that it relates to the primary Judge’s holding that the Company contravened cl 7.1 of the Agreement.

THE APPELLANTS’ CHALLENGE TO THE PRIMARY JUDGE’S CREDIBILITY FINDINGS

201    As noted above, the primary Judge found the evidence of Mr Stewardson, Mr Gorman and Mr Green unreliable. His Honour’s dissatisfaction with their evidence was so complete that he disposed of the respondents’ case under ss 340 and 346 of the FW Act on the basis that the appellants had called no credible evidence as to Mr Green’s reasons for terminating the employment of Mr Giddings, and had therefore failed to discharge the onus of proof which arose under s 361.

202    In the submission of the appellants, fundamental to his Honour’s credibility findings were his conclusions that each of these witnesses had concealed or disguised (or similar) evidence which they thought would be unhelpful to the appellants’ case. Specifically, this related to the absence from the affidavit of any of them of any reference to the Scenario Planner (see para 15 above) or to the first, second and third drafts of the OOR report. It was submitted on behalf of the appellants that his Honour had fallen into an error of the kind referred to in the judgment of Heydon, Crennan and Bell JJ in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, 386 [67]:

It is not sound judicial technique to criticise a party-witness for deliberately withholding the truth in a fashion crucial to a dismissal of that party’s claim unless two conditions are satisfied. First, reasons must be given for concluding that the truth has been deliberately withheld. Secondly, the party-witness must have been given an opportunity to deal with the criticism.

This passage requires attention to be given to four matters: (1) Was a party-witness criticised for deliberately withholding the truth? (2) Was it in a fashion crucial to a dismissal of that party’s claim? (3) Were reasons given for concluding that the truth had been deliberately withheld? (4) Was the party-witness given the opportunity to deal with the criticism?

203    As to the first matter, Mr Green was both a party and a witness in the proceeding before the primary Judge. Further, since Mr Gorman and Mr Stewardson were senior managers whose conduct was assimilated to that of the Company by his Honour, they too, in my view, came within the principle enunciated in Kuhl. As is apparent elsewhere in these reasons, each of these witnesses was criticised by his Honour for deliberately withholding the truth.

204    As to the second matter, technically the Company and Mr Green were not claimants at all: they were respondents. However, in the respondents’ case under ss 340 and 346 of the FW Act, the Company bore the legal onus on a significant issue, the resolution of which would inevitably turn, wholly or substantially, upon the evidence of Mr Green himself. On any view, the primary Judge’s criticism of Mr Green and, if it matters, Mr Gorman and Mr Stewardson, was self-evidently crucial to the dismissal of the Company’s, and Mr Green’s, defence to that case.

205    As to the third matter, although counsel for the appellants were critical of the reasons given by the primary Judge for his Honour’s criticisms of the evidence of these managers, I do not understand it to have been contended that his Honour did not give reasons at all.

206    As to the fourth matter, I turn below to the question whether the relevant witnesses were given the opportunity to deal with the criticism ultimately made of them in the primary Judge’s reasons. That has become a central issue in the appeal, although it was, I would have to say, dealt with in the submissions of the parties at a very high level. Counsel for the appellants asserted what was, in effect, a negative: that no warning that would have been sufficient was given to any of the witnesses. Counsel for the respondents rejected that proposition, and referred to some instances on which they relied. The sufficiency of those instances will need to be examined. Because of the importance of the point, however, and because time for a painstaking investigation of the course of the trial was not available at the hearing of the appeal, I have read the transcript of the evidence of Mr Green, Mr Gorman and Mr Stewardson, and, in due course below, I shall set out what I believe to be each instance in which, even arguably, a sufficient warning might have been given to these witnesses.

207    Before getting to the detail of this issue, however, there are some dimensions of the controversy – quite apart from the question whether sufficient warnings were given – that might conveniently be addressed at the outset.

208    In their outline on appeal, the respondents observed, correctly, that the point did not correspond with any ground contained in the appellants’ Draft Notice of Appeal. Normally, that would be fatal. In the present case, the notice was, I would have to say, a most unhelpful document: it was replete with grounds of which little or nothing further was heard and provided a quite misleading picture of the kind of case that was ultimately run on appeal. Had this been a jurisdiction in which an award of costs was available, a submission might have been open to the respondents in this regard. But, in their written outline filed some four weeks before the hearing of the appeal, the appellants took the Kuhl point and articulated the basis of their reliance on it. In oral argument, counsel for the respondents did not revisit their client’s protest that had been contained in their outline, and dealt with the matter on the merits. There was no suggestion of any disadvantage or prejudice arising from the unsatisfactory way in which the appellants had prosecuted their appeal in relevant respects. In the circumstances, I am disposed to treat the point as properly before the court.

209    The respondents next made a distinction between a finding that matters had been “concealed” (which, it was put, had not been made by the primary Judge) and a finding that matters had been deliberately “omitted” from these witnesses’ affidavits (which, it was put, had been made by his Honour). Orally, this point was developed into a distinction between concealing evidence or documents as such (which, it was said, did not represent the present case) and omitting to refer to factual details on some relevant matter, such as the timing of a witness’s consideration or awareness of such a matter (which did represent the present case). At least in relation to significant aspects of the primary Judge’s reasoning, I would not accept either of these distinctions; and, to the extent that any such distinction does appear, I consider, with respect, that it is one which does not involve a difference. As appears elsewhere in what I have written, his Honour’s reasons amounted to findings that all three of the appellants’ main witnesses – Messrs Stewardson, Gorman and Green – had withheld from the court documents, and in some instances facts, which his Honour regarded as significant.

210    The respondents next said that this was not a Kuhl situation at all: there, the trial Judge had treated the plaintiff’s evidentiary omissions as a form of admission on matters of substance, no challenge having been made to his evidence, whereas in the present case the primary Judge made findings of credit. In Kuhl, the plaintiff had given a brief and, the trial Judge apparently thought, inadequate account of the detailed facts surrounding the incident which gave rise to his injury. The trial judge had said that the plaintiff “was reluctant to say precisely what happened” (243 CLR at 383 [60]). Of that statement, Heydon, Crennan and Bell JJ said (243 CLR at 384 [62]):

The significance of the trial judge’s finding. The conclusion of the trial judge that the plaintiff was “reluctant to say precisely what happened” is an important one. If that conclusion were soundly arrived at, it would be a significant factor against the plaintiff’s success. So, at least, the trial judge, the Court of Appeal majority and the first respondent thought. It would be significant because of the following considerations. Witnesses are supposed to answer questions put by counsel responsively: they are supposed to give a full answer, but no more. It is one thing to say that a witness was not asked the right questions. It is another thing to say that a witness did not answer the questions that were asked. And it is an even more serious thing to say that a witness was “reluctant” to answer. The duty of a witness is to tell the truth, the whole truth, and nothing but the truth so far as the questions asked seek it. The duty of a witness to answer questions responsively involves not only a negative duty (not to volunteer material for which the question does not call), but also a positive duty (to proffer all material within the witness’s knowledge for which the question does call). To conclude that a party-witness is reluctant to say what happened is to conclude that the party-witness is deliberately failing to comply with the duty to tell the whole truth. That is a serious conclusion to reach, for the following reasons.

Their Honours’ reasons, into which the above passage led, culminated in the passage set out in para 202 above.

211    As I read Kuhl, that passage applies, as its terms provide, wherever a party is to be criticised for deliberately withholding the truth in a fashion (ie in circumstances) crucial to a dismissal of his or her claim. Kuhl was one example of such a case. There, the plaintiff’s omission led the trial Judge to fill the void by drawing an inference that was adverse to his interests (ie that “some subsequent action by [him] caused his arm to be drawn in by the suction force” (243 CLR at 386 [65])). The position in the present case differed in the sense that, ultimately (ie by the respondents having availed themselves of the notice to produce procedure), the full facts of the matter were known. But the principle for which Kuhl stands covered the present case in the sense that omissions from the evidence-in-chief of the witnesses concerned were crucial in the primary Judge’s conclusion that those witness were not to be believed across a broad front.

212    I would add that I do not read Kuhl as concerned with the simple situation in which a witness gives positive evidence of a fact and that evidence is not accepted. The premise upon which all litigation proceeds is that witnesses are well aware of their obligation to give truthful evidence and of the prospect that their evidence might not be accepted. By contrast, Kuhl was concerned with an omission, that is to say, with evidence which fell short of being “the whole truth”. The present case is of the same kind, but it differs in the procedural context in which the evidentiary statements later held to be incomplete were made. They were made in affidavits, where the deponents did not swear to tell “the whole truth”, but swore, or affirmed, that the contents of their affidavits were true and correct in every particular. This is not merely a technical distinction. It reflects the forensic reality of the different ways in which evidence-in-chief may be given. It is an important distinction in the present case because of the need to give close attention to the gravity of the omissions of which the primary Judge accused Mr Green, Mr Gorman and Mr Stewardson. At this point, I desire to make some general observations by way of foundation for what will follow in these reasons.

213    The evidence which a party leads in chief in support of his or her case is a matter for him or her. Subject to the court not being misled by half-truths and the like, a party is under no legal or (in the case of his or her legal advisers) ethical obligation to call evidence which is unhelpful to that case. That, amongst other reasons, is why we have pre-trial procedures for discovery and, at trial, cross-examination. The omission of counsel to lead, in chief, evidence on particular topics exposes his or her client to risks at two levels (at least). First, if it becomes apparent that the witness concerned might have given relevant evidence, counsel’s choice not to question him or her about the topics may incline the court against drawing inferences favourable to the party: see Kuhl 243 CLR at 385 [63]. Secondly, the omitted evidence may ultimately be disclosed in a forensic setting over which the party has little control. Thus the case of a party whose counsel chooses to examine a witness in chief on part only of the relevant facts within that witness’s knowledge may be cast in a most unfavourable light if the whole facts come out first in cross-examination. On the other hand, it is a commonplace that cross-examining counsel often take the opportunity to elicit from a witness facts which contribute to the case of counsel’s client, such as facts that might contribute to a positive defence, but which, because they made no contribution to the case of the party calling the witness, were not mentioned in chief. In such a situation, there could be no criticism of the party calling the witness for confining the questions asked in chief to those that were considered helpful and relevant to his or her case as such.

214    There are, of course, well-known exceptions to the principles just referred to, such as the situation in which a court is being asked to intervene in the absence of the affected party. However, at the contested trial of a proceeding in which there have been reciprocal inspections of the parties’ documents, such as generally follows discovery, or some analogous procedure such as inspections pursuant the return of subpoenas or notices to produce, there is, so far as I am aware, no basis upon which a party could be criticised for omitting from the evidence which he or she calls documents considered to be unhelpful to his or her case. In our system of litigation, a party is, save in exceptional situations, under no obligation to make good the other party’s case.

215    Turning from the position of the party to the position of a witness called by the party, I would refer next to what their Honours said in the passage from Kuhl set out at para 210 above. The specific point for present purposes is that a witness who has sworn to tell the whole truth is under no obligation to go further than to provide complete and truthful answers to the questions which are asked of him or her. I know of no principle which would have it that the credibility of a witness should be regarded as compromised by the circumstance that he or she omitted to give answers to questions which might have been, but which were not, addressed to him or her.

216    How considerations of the kind discussed in Kuhl play out in a setting in which the evidence-in-chief of a witness, whether or not a party, is given on affidavit has not, it seems, been the subject of authoritative judicial attention. A point of distinction flows out of the considerations to which I have referred in para 212 above. The evidentiary omission of which the trial Judge had been critical in Kuhl arose during the course of the plaintiff’s oral evidence-in-chief. The course of his examination is, relevantly, laid out in the reasons of Heydon, Crennan and Bell JJ (243 CLR at 384 [61]): he was asked to recount what had happened when the hose was passed back to him. A witness who, in answer to a question in this form, recounts some but not all of the happenings which were involved in the event inquired of might be criticised for not having told the whole truth. By contrast, where evidence-in-chief is given by affidavit, a promise to tell the whole truth, in the sense of not omitting anything that might be relevant, even important, is not conventionally part of the oath or affirmation. Of course, if the affidavit contains a statement that its contents, either generally or in respect of a particular matter, are comprehensive, different considerations would apply; as they might in a situation in which, even absent an explicit statement of such a kind, it appears that the deponent was manifestly concerned to give a blow-by-blow account of some event. Even in a case of this latter kind – ie where the affidavit, explicitly or necessarily, makes it clear that it constitutes a complete statement of the relevant facts known to the deponent either generally or in respect of a particular matter – the court will not be justified in reaching a conclusion of deliberate concealment unless the deponent has been appropriately warned.

217    Additionally to that point of distinction, there is, in my view, an important point of similarity between the case in which evidence-in-chief is given orally and the case where it is given on affidavit. In a case of the latter kind, and proceeding by way of analogy, it would, in my view, be both unrealistic and contrary to principle to commence with the assumption that the contents of the affidavit must have been the result of the witness’s own unassisted endeavours. Just as a witness answers questions from his or her counsel, so too the assumption must be, in my view, that it will be the party’s legal advisers who shoulder at least the de facto responsibility for deciding what matters will be set out in the witness’s affidavit. After all, the courts place considerable reliance on legal practitioners to confine evidence to such as is relevant and otherwise admissible. The system would not work if it were left to lay witnesses to decide the scope of the evidence they would give, and the terms and form in which it would be given. What I say in this paragraph would, of course, be subject to substantial modification in a situation in which the relevant party is unrepresented (a situation which does not have to be considered here), but even then the court expects, somewhat optimistically at times, the party to make a distinction between what he or she knows about the dispute in which he or she is involved and the relevant and admissible evidence that is required to produce a successful outcome in court.

218    As in the case of a question on a relevant topic which is not asked in chief, so too where a particular matter is not addressed in an affidavit led in chief, it may prove to be to the forensic disadvantage of the party concerned to have proceeded in this way. But the court should not, from that circumstance alone, regard the witness in question as unlikely to be telling the truth in relation to the evidence which he or she does give. Much less, with respect to the primary Judge in the present case, would the court be justified in concluding that the witness was concealing, or disguising, the facts which were not part of his or her evidence-in-chief.

219    Turning then to the present case, I propose to undertake a survey of so much of the evidence of Mr Stewardson, Mr Gorman and Mr Green as bears upon the matters presently under consideration. In the case of each witness, two issues require attention: (1) whether the primary Judge was justified in his statements that he “purported to present a comprehensive account of the development of the proposal to abolish positions and terminate the employment of the affected employees”, and “in cross-examination … confirmed that this was so”; and (2) whether a sufficient warning of the prospect of concealment findings of the kind made by his Honour was given.

220    Taking first Mr Stewardson, it is true that his affidavit appears to present a comprehensive account of how he reached the point at which he recommended to Mr Green that the positions of Long Term Planner and Facilities Maintenance Engineer be abolished; or, as it was put in some of the documents, that those roles be made redundant. Chronologically, Mr Stewardson’s consideration of such matters, as laid out in his affidavit, commenced at a very high level in April 2014 when Mr Green informed him of the operations review and of Mr Gorman’s role in it. On 2 May 2014, he was informed by Ms Ragen that the review was moving to Phase 2, where cost savings measures in the functional support area of the business would be considered. Mr Stewardson proceeded to describe the course of his consideration of cost savings in the engineering department, referring to various roles which could potentially be made redundant. On 17 July 2014, he emailed Mr Green with a brief background paper for a meeting which was, apparently, to be held the following day, and in which he identified the positions of Long Term Planner and Facilities Maintenance Engineer as no longer needed by the Company. Whether or not a meeting was held on 18 July 2014, Mr Stewardson does mention the meeting with Mr Green, Mr Gorman and others on 1 August 2014 referred to in the reasons of the primary Judge.

221    At least down to that stage, Mr Stewardson’s affidavit was wholly concerned with his consideration of what roles in the engineering department were no longer needed. While the termination of the employment of those who occupied the positions concerned might have appeared likely, the fact is that the affidavit did not purport to deal with any “proposal to … terminate the employment of the affected employees”. This distinction may be significant because, ultimately, the primary Judge accepted that the Company’s decision to abolish the positions of Long Term Planner and Facilities Maintenance Engineer, and one Administration Assistant Position, was based on genuine business needs and, in the case of the first-mentioned position, was not was not made for reasons which included Mr Giddings’ role or activities as a union officer.

222    In Mr Stewardson’s affidavit, I do not find any indication, either expressly or by necessary implication, that nothing that might have been of relevance to the appellants’ case had been omitted. I can understand that a reader of the affidavit might assume that it was comprehensive, but it would, in my view, be a different matter altogether for him or her to treat Mr Stewardson as having been untruthful by reason only of any such omissions.

223    But it was submitted by the respondents, and accepted by the primary Judge, that, in his oral evidence, Mr Stewardson had confirmed that his affidavit did contain a comprehensive account. Early in his cross-examination, Mr Stewardson was taken to a paragraph in his affidavit in which he referred to a meeting on 2 May 2014 with Ms Ragen, in which she told him that the operational review should consider moving to Phase 2, and that it would be necessary to consider any cost saving initiatives in the functional support areas of the Company’s business. Responding to counsel for the respondents, Mr Stewardson clarified that this was a routine monthly meeting to discuss employment relations, and was not confined the subject of the review. Then there was the following interchange:

Now, thereafter, Mr Stewardson, you’ve – just by way of overview – I don’t want to take you to anything particular at the moment – but you’ve set out an account of your involvement in the process which led to the – the compulsory redundancies of Mr Giddings and Mr Rosewarn?---Yes.

Now, do you tell the court that that – the account you’ve set out in your affidavit is a full account of the – your knowledge of the process leading up to the redundancies?---Yes.

224    The matter of the comprehensiveness of Mr Stewardson’s affidavit was not further explored by counsel at that point. I would make two observations about the stage that matters had then reached. First, it is, of course, a common and legitimate practice for cross-examining counsel to have the deponent of an affidavit confirm that he or she has included therein everything that relates to the area on which he or she is giving evidence. Usually, this is a precursor to a line of questioning about some matter which is not in the affidavit. To say that a witness’s evidence generally should be regarded as unreliable on account of the untruthfulness of such a confirmation would, however, normally be a very big step for a trial Judge to take. Secondly, even if the evidence of Mr Stewardson as mentioned above were untruthful, that would not be the same thing as the witness having concealed, or deliberately withheld, every piece of relevant evidence that was not in his affidavit. There might be any number of benign explanations for the absence from an affidavit of matters which the witness concerned might have mentioned, a judgment made by the legal advisers of the party concerned being, perhaps, the most obvious one. In the result, I take the view that the primary Judge was not entitled to treat the answers referred to most recently above as, of themselves, casting a long shadow of doubt over the legitimacy of Mr Stewardson’s reasons for omitting certain evidence from his affidavit.

225    I turn next to the question whether Mr Stewardson was cross-examined in a way which amounted to a sufficient warning of the concealment findings which were ultimately made.

226    In the course of the cross-examination of Stewardson about his knowledge of the scenario planner, the following interchange took place:

Now, did you have discussions with Mr Gorman or anyone else about the contents of this document?---No.

How did you come to see it then?---It was part of a presentation that I – that I was witness to across that period of time.

Do you make reference to that presentation in your affidavit?---I don’t believe so. No, I don’t.

So when you told me that you’ve given … a full account of your involvement in the process, that wasn’t correct, was it?---It was from the point of view of everything I had involvement in producing.

The matter was left there.

227    The next aspect in relation to which Mr Stewardson was challenged about an omission from his affidavit related to something which appeared in Mr Gorman’s affidavit. At the stage when Mr Stewardson was here under cross-examination, Mr Gorman had not yet been called. But cross-examining counsel had his affidavit. It contained the following:

On 23 May 2014, I met with Mr Stewardson and Ms Ragen to discussion the Operational Review, including the potential for the MTEC roles to be filled by two persons from the Engineering team, rather than by secondees from the shift work groups. A copy of a draft presentation outlining this proposal is at JG1, Tab 11 . The focus was to restore the shift work groups resource levels and reduce the costs associated with covering the gaps left in the business left by the secondees.

It is not necessary here to elaborate upon these matters, save to observe that the potential for the redeployment of Mr Giddings and others (but not, at least clearly from the document, Mr Rosewarn) was noted in the document referred to.

228    Mr Stewardson was taken to this document by counsel for the respondents. On the subject of redeployment, he was cross-examined as follows:

Now, did you have a part in formulating those proposals as far as redeployment was concerned?---I had input, yes.

And how was that position arrived at?---Discussions between myself and Mr Gorman around possible options for the roles.

I see. And that was obviously some time before 23 May 2014 that you had those discussions?---It may have been just before, I can’t – I can’t recall exactly when.

Well, Mr Gorman gave the presentation to you that included this information on 23 May, didn’t he?---Yes.

So those discussions must have occurred before that date?---Yes.

Now, you don’t refer to those discussions concerning possible redeployment anywhere in your affidavit?---No.

So when you say you gave a full account of your involvement in this process, that wasn’t entirely accurate, was it?

[Objection]

When you said in answer to a question earlier yesterday that you had given a full account in your affidavit of your involvement in the process leading to the redundancies, I suggest to you that answer wasn’t entirely accurate?---No, I disagree.

Well, the consideration of options for redeployment, that’s an important part of the process, isn’t it?---Yes.

And you didn’t give any indication of your involvement in that process, which resulted in these proposals in your affidavit?---That’s correct. So this was – I failed to indicate a conversation I had with Mr Gorman before the presentation.

Well, it was more than just a conversation, wasn’t it, Mr Stewardson? You were considering important issues, which was how people who no longer had a position could be redeployed within the organization.

[Objection]

Mr Stewardson, still looking at the right-hand column of this document on page 57, those – the entries in that column are proposals with respect to redeployment of individuals. You agree with that?---Proposals, yes. That’s correct.

And those proposals were developed between yourself and Mr Gorman essentially, would that be right?---As I say, I can remember brief conversation before the presentation.

In order to know where the individuals in these positions could potentially be redeployed to, you would have to have a look at what skills and qualifications they have?---That’s correct.

And who did that before this document was prepared?---That was me in a conversation with Mr Gorman.

229    The next aspect of Mr Stewardson’s cross-examination of present relevance related to the question whether, by about 25 July 2014, there had been a change in the Company’s position on the matter of offering voluntary redundancies as a means of absorbing those whose positions would be made redundant as a result of the operational review. In answer to the court, Mr Stewardson confirmed that he, Mr Gorman and Ms Ragen reached the view (in his Honour’s words as put to the witness) “that voluntary redundancies ought only be offered in the admin assistant’s stream, but that had yet to be approved by Mr Green”. When it was suggested to him by counsel for the respondents that he had had some discussions with Mr Green in July 2014 on “the subject of voluntary redundancy and how widely it would be offered”, Mr Stewardson said that he did not recall such discussions.

230    Cross-examination then proceeded as follows:

Mr Stewardson, at some point that decision was reached, wasn’t it, that at least as far as you and Mr Gorman were concerned, leaving aside Mr Green for now, a decision was reached that your approach would be no voluntary redundancies outside of the admin finance area?---Between Mr Gorman and I?

Yes?---Based on the advice we had, yes.

When you say “based on the advice” what are you referring to?---I’m sorry. I mean yes. Yes. Yes.

What did you mean by that, Mr Stewardson, when you say “based on that advice”?---Well, so Ms Ragen is an important part of that conversation as well and she’s our HR specialist.

Do you say that you based your position that no voluntary redundancies would be offered outside of finance and admin on Ms Ragen’s advice?---Yes.

And you don’t refer to that anywhere in your affidavit?---No. But, as I say, I form the view that none of this is approved - - -

I’m sorry?--- - - - until my general manger or manager said that it’s - - -

Well, you’ve given a lot of evidence in your affidavit, Mr Stewardson, about the steps you took to develop a proposal before it was ever approved by Mr Green?---Yes.

And this discussion – and this decision was about an important issue, wasn’t it?---Yes.

Counsel continued to press Mr Stewardson about discussions which he had had in July 2014 with Mr Green about the “specific issue of voluntary redundancies and how widely they would be offered”, and he maintained his evidence that he could not recall any such discussions.

231    The next, and final, challenge made to the completeness of Mr Stewardson’s affidavit came in the context of cross-examination about differences between the first and later drafts of the OOR report. The first draft contained a passage to the effect that the company should prepare an assessment of contractors performing work of the nature that employees may have the skills and competencies to perform. Counsel asked Mr Stewardson to accept (as was the fact) that this passage “disappeared from subsequent versions of the document”. He was asked whether he had any explanation for that, and he replied that he did not. Cross-examination continued:

And do you know whether that assessment was ever undertaken by the company?---Yes.

And did you do that?---Myself and Mr Gorman. Yes.

And does that appear in your affidavit, Mr Stewardson?---I refer to the work that was done across that period, but Mr Gorman documented that process.

I see. Can you just point me to where in your affidavit you refer to conducting an assessment of the contractors and that the nature of the work and skills, etcetera?---I – my apologies, I may not have referred to it as I understood that Mr Gorman was undertaking the documentation for that review.

Was a document prepared?---Yes.

232    After some further questions, and an interchange involving the court, on that subject, cross-examination continued:

[As] at July 2014 you proceed on the basis that there would be no voluntary redundancies outside of the finance admin?---Right.

You proceeded on the basis contractor work was only relevant … to redeployment if the work constituted a permanent fulltime position?---Yes.

And you proceeded on the basis that there were no opportunities for redeployment of Mr Giddings and Mr Rosewarn within [the Company] at that time, that is, July 2014?---As I say, I can’t specifically remember what my mind was telling me in July exactly, but, yes.

And I want to suggest to you that the reason that you proceeded on that basis was because each of those assumptions was necessary in order to justify making Mr Giddings redundant?---Sorry, was that a question?

Yes. I’m putting to you a proposition that the reason you proceeded on the basis of those three assumptions was that each of them was necessary, and all of them were necessary, in order to justify making Mr Giddings redundant?---That’s not correct.

And … Mr Stewardson, I want to further suggest that you have omitted significant parts of these deliberations from your affidavit?---Which parts of these deliberations?

[Objection]

The parts where you and Mr Gorman changed your position on each of those three issues, you’ve completed [sic] omitted any reference to that process from your affidavit, haven’t you?---As I said, my assumption through the whole process was nothing final until my general manager it [sic], so.

Yes. Mr Stewardson, you’ve made that point many times and the reason you keep advancing that is because you think that proposition helps the respondent’s case; that’s right, isn’t it?---No. Because it’s true.

[Objection]

It’s your understanding, as you sit in the witness box, Mr Stewardson, that it’s helpful to the respondent’s case to advance the proposition that no final decision had been taken by July 2014. That’s your understanding, isn’t it?---No.

That’s why you keep repeating the proposition that no final decision had been made. That’s why you’re doing it, isn’t it?---No, it’s not.

I shall return to this extract from the evidence of Mr Stewardson presently.

233    First, however, it is necessary to consider the way in which the primary Judge addressed the matter of Mr Stewardson’s omissions in his evidence. I have dealt with that subject at paras 76-87 above. The first document was Ex A4 (see para 19 above). That had been produced by the appellants in response to the respondents’ notice to produce. It was shown to Mr Stewardson during cross-examination. No suggestion was made to him that it should have been referred to in his affidavit, much less that its omission was a deliberate act on his part.

234    While on this subject, it is desirable to return to his Honour’s treatment of the “Nirvana” slide in this document. The course of Mr Stewardson’s cross-examination on this subject was as follows:

[W]hat do you mean by referring to this plan as Nirvana?---My intent with this document, as I said, was purely for developing proposals in my own mind, and memory of this document to me is calling it Nirvana was to make myself feel good.

I’m sorry?---To make myself feel good. I mean, I didn’t produce it for any other purpose.

This was your ideal structure, is that right?---Yes, at the time.

And also your ideal personnel filling particular positions?---They were in – yes. Suggested, yes.

Yes. These were the people you wanted in your team?---At that time.

Yes. And you didn’t want Mr Giddings, did you?---That’s correct.

And part of the reason you didn’t want Mr Giddings was his role in providing resistance to what you thought was appropriate in the Enterprise Agreement. That’s right, isn’t it?---No, it’s not right.

235    As noted earlier in these reasons, the primary Judge held that this evidence was “contrary to the thrust of his evidence that he did not have an adverse view about Mr Giddings’ work at the terminal or his union role and industrial activities”. However, in reaching his own view of the credibility of Mr Stewardson in relevant respects, his Honour made no mention of the following evidence given by him in re-examination:

You were asked some questions … about the last page of that document which is headed Nirvana. Do you recall those questions?---I do, yes.

And you said that it was your ideal structure, and you said, “Yes, at the time”. Do you remember that?---Yes.

At what time were you referring to?---So, at around that October period of time, so ideal structure in my mind at that time.

It’s – when you say “ideal”, what do you mean by that?---So I produced that document as a risk, I guess, risk tool in my own mind to validate that the numbers in my team were going to be adequate, given the proposal I presented.

I see. And that document does not obviously include the position occupied by Mr Giddings, does it?---No, it doesn’t.

And it was suggested to you that the people in the Nirvana document were the people that you wanted in your team – and you said at the time?---Yes.

And it was suggested to you that you didn’t want Mr Giddings, did you, and you said, “That’s correct”?---Yes.

What did you mean by that?---I meant the – I meant the role of the long-term planner.

Right. And there are other roles which were in your real world team which were not included in the structure headed Nirvana, is that right?---That’s correct, yes.

And in respect of each of those roles, did you – which were not included in the Nirvana document, what was your position in relation to those roles?---That I saw that I wouldn’t need those roles in the future either.

You wouldn’t need those roles in the future, is that right?---I wouldn’t need those roles either, or they would be renamed to the – potentially, to the roles that I had described on that document.

Right. Thank you. …. The roles – the other roles other than Mr Giddings which were in your team but which were not included in the document headed Nirvana, were any of those roles – well, obviously, none of those roles other than Mr Giddings was occupied by the Lodge President of the CFMEU of the plant?---That’s correct.

Were any of those other positions occupied, to your knowledge, by members of the lodge executive?---In – in that structure?

The people that were not present in Nirvana who were in your real time?---That were not present – the people? So I – so that structure was referring to roles specifically, so the people that I had in those – in that structure had a lot of poetic licence because there’s contractors and all sorts of people in that structure that I had no – no ability to recruit or retain.

Right?---So it was purely a tool to validate in my own mind that the numbers and the structure looked the right size.

I do not suggest that the primary Judge was under any obligation to accept this evidence in re-examination, but it was, in my respectful view, incumbent upon his Honour at least to give it consideration before reaching the conclusion set out at the commencement of this paragraph.

236    The proposition that Mr Stewardson “failed to disclose the presentation in an attempt to avoid disclosing his real view about Mr Giddings”, reflected in the primary Judge’s finding set out in the quoted passage at para 77 above, was not put to Mr Stewardson. He was, undoubtedly, cross-examined along the lines that his real view of Mr Giddings was that he was, because of his union roles and industrial activities, an impediment to the better operation of the terminal, but that was, with respect, a very different matter from that involved in his Honour’s finding that he had, in effect, been party to a conscious design to conceal evidence from the court.

237    As to Mr Stewardson’s failure to mention the Scenario Planner in his affidavit, what the primary Judge meant by his “hedg[ing]” (see para 78 above) must, so far as I can see, have been a reference to the passage in cross-examination set out in para 226 above. In that passage, Mr Stewardson was not asked, much less pressed as to, why he had failed to mention the Scenario Planner in his affidavit. Rather, he was challenged on the truthfulness on his earlier evidence that his affidavit contained a full account of his involvement in the process. He justified his position, and that justification need not have been accepted by his Honour. But he was not further challenged on that justification. And it most certainly was not put to him that his failure to refer to the Scenario Planner in his affidavit arose from his desire to conceal evidence from the court.

238    As to the OOR report, what is striking about the passage from the cross-examination of Mr Stewardson which I have set out at paras 231-232 above, is that no suggestion was made to the witness that he ought to have referred to the report in his affidavit. Rather, he was questioned as to why he made no reference to having undertaken the assessment which had been recommended in the first draft of the report; and, later, as to why he had omitted to make any reference to his, and Mr Gorman’s, change of position on what counsel referred to as the three assumptions. It was not the omission of any reference to the OOR report that, as put to Mr Stewardson in cross-examination, was supposed to have been designed to assist the appellants’ case: rather, it was the witness’s repeated insistence that, through the whole process, nothing was final until approved by Mr Green.

239    As to Mr Stewardson’s concession that, until late May 2014, he thought that it might be possible to redeploy Mr Giddings into other positions and that he had discussed that with Mr Gorman (see para 80 above), it was not, so far as I can see, put to Mr Stewardson that his omission to refer to that aspect in his affidavit was the result of a conscious decision on his part to assist the Company’s case in court.

240    Finally on this aspect, with respect to the matter of contractors dealt with in para 82 above, although dealt with in the section of his Honour’s reasons presently under discussion, the criticism appears to be not so much that Mr Stewardson concealed something that would have been harmful to the appellants’ case if set out in the affidavit, but that he was wrong in claiming, in response to counsel’s questions in cross-examination, that any proper assessment had been undertaken. Indeed, the evidence in question would, if accepted, have been helpful to the appellants’ case.

241    Turning next to Mr Gorman, it is also true that his affidavit appears to present a comprehensive account of how he reached the point at which he recommended to Mr Green that the positions of Long Term Planner and Facilities Maintenance Engineer be abolished. The affidavit commenced with his appointment to conduct the operations review (or “Business Review” as it was called in Mr Green’s memo to all staff of 14 April 2014). Mr Gorman said that, in the process of “actioning certain identified initiatives”, he discussed “draft papers” with Mr Green and others in the management team. He set out what he described as “a summary of the various initiatives [he] considered” in the review.

242    Under the heading (in his affidavit) “PKCT Operational Review”, Mr Gorman gave evidence as to the preparation of the summary referred to in para 13 above. There followed a subheading, “Phase 1 – Operational Review” in which Mr Gorman said that he first considered the business “from an operational perspective”, that is to say, relating to shift and day work trade work groups. Under the subheading, “Phase 2 – Operational Review”, Mr Gorman considered the prospect of labour reductions in “Finance/Admin/Stores & Daywork appointed positions”. He referred to his conversations with managers in the various functional areas, including Mr Stewardson and Mr Tonini. As to the engineering team, Mr Gorman told Mr Stewardson that there were potentially five roles that could be reduced. In that part of his affidavit that dealt with potential reductions amongst administrative employees, Mr Gorman referred to, and exhibited, a version of the organisation chart which showed the positions that would be affected. He said that he prepared this on 30 June 2014, and that it was “based on previous workforce planning processes and recent discussions with Mr Tonini and Mr Stewardson”. This was the chart referred to in para 17 above.

243    Continuing with Mr Gorman’s affidavit, the next section was under the subheading “Final Recommendations to Peter Green”. Mr Gorman said that, on 24 July 2014, he met with Mr Green for their “regular fortnightly review”. He said that, on 1 August 2014, he met with Mr Green, Mr Stewardson and Ms Ragen “to discuss our recommendations of proposed redundancies”. He said nothing more about that meeting. He followed that evidence with a reference, with only the highest-level details, of what he described as approximately five further meetings with Mr Green and other managers from then until 18 November 2014. So far as his affidavit is concerned, however, the clear impression is that Mr Gorman’s recommendations as to the abolition of positions in the engineering department were complete by 1 August 2014.

244    However, as in the case of Mr Stewardson, while the reader of Mr Gorman’s affidavit might reasonably assume that it was comprehensive, there was no indication, explicitly or by implication, that nothing that might have been of relevance to the appellants’ case had been omitted.

245    At the outset of Mr Gorman’s cross-examination by counsel for the respondents, the following exchange took place:

Mr Gorman, as a general proposition, your affidavit sets out your involvement in the review process which led to the compulsory redundancies of three of PKCT’s employees?---Yes.

And do you say that you have set out every – I withdraw that – the full extent of your involvement in that process to the best of your ability?---Yes.

And you’ve set out every step that you took in relation to the review?---Yes.

That was as far as counsel went to have Mr Gorman affirm that his affidavit was comprehensive. I would apply to his circumstances what I have said about those of Mr Stewardson at para 222 above.

246    With respect to the matter of warnings, I commence with the Scenario Planner, about which Mr Gorman was cross-examined. His explanations for various entries which he made in this document were challenged. Then cross-examination proceeded as follows:

And you don’t identify anywhere in your affidavit that you produced this document, do you?---No.

And the reason for that is you knew that this document wasn’t helpful to your case, didn’t you?---No.

You told me at the beginning that you had included every step that you had taken in progressing this review?---Yes.

And this is an important step, the preparation of this document, isn’t it?---It’s part of it, yes.

Yes. You don’t have any other reason why you didn’t include it in your affidavit?---I used this for the purpose of obtaining legal advice.

You don’t have any other reason why you didn’t include it in your affidavit, Mr Gorman?---No.

That was, I accept, a direct challenge to Mr Gorman’s motive for omitting any mention of the scenario planner from his affidavit, and it would amount to a warning of the kind required by Kuhl.

247    Mr Gorman was cross-examined about the document titled “Review of the obligations regarding workforce reductions” (see para 14 above), but he was not asked why he made no reference to it in his affidavit. The conclusion of the primary Judge that Mr Gorman had not referred to this document because it was contrary to the Company’s case did not correspond, even approximately, with anything that was put to the witness. Likewise, Mr Gorman was cross-examined extensively about the first, second and third drafts of the OOR report, substantially in the sense of what they showed about his, and management’s, thinking in the early months as to the Company’s obligations with respect to employees displaced by redundancies. But, again, he was not asked why he made no reference to these drafts in his affidavit: much less was it ever put to him that the omission was “deliberate”, or that he was “alive to the risk that his failure to disclose the OOR report could damage his credibility”, as found by the primary Judge.

248    Mr Gorman was cross-examined about his advice to Mr Green, in late June 2014, that the Company should not offer voluntary redundancies in relation to Daywork Appointed positions, because it would reduce the cost savings that could be achieved by forced redundancies. Nothing was put to him as to his reason for omitting any reference to that advice from his affidavit, but something was put to him about his own decision, made jointly with Ms Ragen and Mr Stewardson, that voluntary redundancies should not be offered outside the administration and finance area. The cross-examination proceeded as follows:

Now, that was a very important decision, wasn’t it?---Yes.

And there’s no record of the – I withdraw that. There’s no mention of that decision in your affidavit?---Not that I can recall, but I would have to reread my affidavit.

Well, accepting, as you do, that it’s an important decision, why wouldn’t you put that in your affidavit?---I couldn’t say.

Is there any record that you know of of the process and deliberations that led to that decision, and I don’t want you to mention any content of any legal advice?---No.

This was, I take it, the passage in which, in the primary Judge’s words, Mr Gorman offered “no cogent explanation” for his failure to disclose the advice to Mr Green. Whether or not Mr Gorman’s answers to the questions addressed to him amounted to a cogent explanation, however, there is, in my respectful assessment, nothing here that would warn the witness of the prospect of a finding, as his Honour made, that Mr Gorman did not disclose the advice “in an effort to avoid disclosing that a desire to save costs underpinned a recommendation which, on its face, was inconsistent with the view he held, at the time, of [the Company’s] obligation to offer voluntary redundancies.”

249    As to the content of Mr Gorman’s advice to Mr Green, I would add only that I cannot, with respect, appreciate how the disclosure of that advice would have been harmful to the Company’s case. Accepting that, in late June 2014, Mr Gorman held the view that the Company was obliged to offer voluntary redundancies to other employees upon the abolition of the positions occupied by Mr Giddings and Mr Rosewarn, this advice may well have been inconsistent with that view, but it would, surely, have been part of the narrative by which Mr Green ultimately acted in the way that he did. And it would have been consistent with innocence, more so than with guilt, under ss 340 and 346 of the FW Act (the only area of the case in which these managers’ states of mind were relevant).

250    Turning finally to Mr Green, in his affidavit, he outlined the background market and commercial circumstances which provided the imperative for a review of the cost of operations at the terminal. He referred to what he described as consultation on that subject, mentioning his email of 14 April 2014 and his address to the Lodge meeting on 4 July 2014. He referred to Phase 2 of the review being conducted by Mr Gorman. He referred to the meeting on 1 August 2014 when Ms Ragen, Mr Stewardson and Mr Gorman outlined what Mr Green, in his affidavit, described as “a number of draft proposals for achieving costs savings and efficiencies”. Save for the events of December 2014, his affidavit was, I accept, short on detail, particularly in relation to the timing of various developments. However, in relation to the events of, say, May-July 2014, which ultimately occupied such a significant place in the reasons of the primary Judge, a reader of the affidavit would, in my respectful view, be unlikely to conclude that the affidavit was comprehensive apropos Mr Green’s involvement. Rather, it tends to read as a summary, with more focus upon what might then have presented as the main issues in the case, such as the relation between the abolition of the position of Long Term Planner and Mr Giddings’ position in the Lodge. Such an observation on the part of an appeal court, would, of course, normally be neither here nor there. What is significant in the present context, however, is that the affidavit contained no statement, and did not convey the necessary implication, that it was exhaustive in the sense that nothing that might have been of relevance to the appellants’ case was omitted.

251    Turning from the terms of Mr Green’s affidavit to the evidence which he gave under cross-examination, he was not asked, at the outset, whether he had included everything of relevance in his affidavit. However, in the course of a series of questions about his state of understanding in early July 2014 – specifically with reference to Mr Gorman’s then proposals, apparent from the third draft OOR report that Mr Green accepted he had seen, that the positions of Long Term Planner and Facilities Maintenance Engineer be abolished, that voluntary redundancies not be called for and that contractor positions not be considered unless they were full-time and permanent ones – the following exchange occurred:

Now, it’s fair to say, isn’t it, Mr Gorman, that - Mr Green, I’m sorry, that you don’t set out in your affidavit to set out all of your involvement in the process leading to the redundancies of Mr Gorman and Mr Rosewarn?---Is your question that I have not been thorough in my affidavit?

I’m not saying “thorough”. I’m saying you haven’t set out the full extent of your involvement in the process leading to those redundancies?---My answer is I have.

After a series of further questions about the subject under examination (ie rather than the completeness of Mr Green’s affidavit), counsel had Mr Green accept that the Company’s decision not to use the mechanism of voluntary redundancy to avoid compulsory redundancy would have been “an issue for the Company to deal with.”

252    So far as I can see, Mr Green was not otherwise invited to confirm that his affidavit contained a comprehensive account of his involvement in the process leading to the redundancies of the positions occupied by Mr Giddings, Mr Rosewarn and Ms Arber, and to the terminations of their employments.

253    With respect to warnings, undoubtedly Mr Green was, as times, asked about the absence of certain matters from his affidavit. The instance referred to most recently above related, in context, to the third draft of the OOR report. Later, Mr Green was being pressed as to his ability to recall some dates and events, but not others. He justified the extent of his recollection by what he said was his recourse to appointments and the like in his electronic diary. The following exchange then occurred:

Well, what records did you rely on for that - to ascertain that?---I can’t recall those records, but in building my affidavit, I went to my Outlook calendar to establish all discussions of this nature, and I would have derived that meeting date from my Outlook calendar.

Now, if you have no records, how - do you have any independent recollection of what was said about those meetings that you refer to in paragraphs 49 and 50?---It would have been topics - perhaps if I could point to this document here.

Which document are you referring to, Mr Green?---[The witness referred to the third draft of the OOR report.]

Yes. So why didn’t you put that document in your affidavit?---Because I didn’t have it, like, by way of an attachment to a meeting or something that would prompt me to include it.

Well, what information did you have about the proposals in writing before you entered the meetings that you refer to in paragraph 49?---The version in writing would have been potential organisational charts, as I referred earlier today.

And you had a version of the document which is [the OOR report]?---Yes.

And that was the basis for your discussions in - or one of the bases for your discussion of the meetings referred to in paragraph 49?---Yes.

It was in para 49 of his affidavit that Mr Green dealt with the meeting on 1 August 2014.

254    For the sake of completeness, I next mention two miscellaneous instances in which the absence of various matters from Mr Green’s affidavit was raised in the cross-examination of him. First, it was pointed out by cross-examining counsel that Mr Green had not included in his affidavit “any report by Mr Gorman following on from his review”, and Mr Green’s response was, “I don’t recall there being one.” Secondly, cross-examining as to whether, in proposing to consult with the Union and the Company’s employees, he was following the timetable laid out by Mr Gorman or his own timetable, counsel put it to Mr Green that the subject of timetabling was “another thing” that he had not included in his affidavit, and he agreed that that was so.

255    As noted above, there were a number of omissions from Mr Green’s affidavit that the primary Judge regarded as particularly relevant to an assessment of his credibility. The first was a reference to Ms Ragen’s document “Operational Review - May 2014”. This was an exhibit to Mr Gorman’s affidavit. He (Gorman) said that the document was presented at a meeting on 23 May 2014 attended by Mr Stewardson, as well as Ms Ragen and himself. Mr Green was not at the meeting. He was, however, cross-examined as to his knowledge of the document. Asked when he first saw it, he replied that he did not recall seeing it “through a meeting or anything like that”, but that he did recall seeing it saved on the Company’s server at the time that he was gathering up material for inclusion in an affidavit to the preparation of which he had, apparently, turned his mind in December 2014, in consequence of receiving a letter from the Union threatening legal action. Mr Green was later further cross-examined about the document, specifically with reference to the appearance which it gave that, at the time of the date which it bore, Ms Ragen had it in mind that Mr Giddings was amongst those who might have been redeployed to other positions. Mr Green was asked, and agreed, that this showed that there had later been a change of position on the part of Ms Ragen and others involved in the operational review. Mr Green made it clear that he was not aware of the document at that time, and was not involved in discussions about it. He was not challenged on this evidence. It was not suggested to him that he had seen the document in May 2014 or thereabouts. Neither was his evidence that he saw the document first in December 2014 challenged. There was, of course, no positive evidence to the contrary of that given by Mr Green on these matters. There was, with respect, no established foundation for the findings which underpinned the reasoning of the primary Judge referred to in para 102 above. Not only was there no basis for the conclusion that Mr Green’s inability to recall the date, prior to 2 July 2014, when Ms Ragen showed the document to him and discussed it with him “implausible”, there was no evidence that that represented the facts of the matter, and it was never suggested to Mr Green that it was. Whether “cogent” or not, Mr Green’s explanation of when, and in what circumstances, he came to see this document was the only one fairly available on the evidence.

256    The second omission to which his Honour referred was the circumstance that, before he addressed the Lodge on 4 July 2014, Mr Green had seen a version of the organisation chart mentioned at para 17 above. He was unable to say when he had seen a version of the chart, but he was cross-examined on the premise that he had seen it before the meeting of the Lodge. That was a valid premise, based as it was on evidence which had by then been given under cross-examination by Mr Gorman (who had said, in his own affidavit, that he had prepared the organisation chart on 30 June 2014). When Mr Green was asked about the whereabouts of the version that he did see at some stage, he said that he did not know. He was asked why the version which he saw had not been referred to in his affidavit, and his response was, “I had no occasion or need to.” Asked further where the document that he saw might be found, Mr Green replied, “If a document exists, it would be in, perhaps, the shared folder that I referred to, or in the affidavits that I’m not across.” While undoubtedly counsel was being critical of Mr Green in this line of questioning, nothing put to him approaches a warning that a finding would be sought that the omission from his affidavit had the purpose of concealing relevant facts from the court. The existence of the chart as such was, of course, the subject of Mr Gorman’s affidavit. I appreciate that the relevant reasoning of the primary Judge, referred in para 103 above, did not put this aspect as high as involving concealment, but it was clearly a significant item on his Honour’s list of three documents and matters which Mr Green had “failed” to disclose.

257    The third omission to which his Honour referred was the fact of Mr Green’s awareness of, and access to, the first, second and third drafts of the OOR report in July 2014. I have summarised, and to an extent set out, the relevant evidence in para 253 above. In my respectful view, while it might well be expected that a witness in Mr Green’s position would make reference to these drafts, or at least to the most recent of them, in his affidavit, the evidence does not justify the conclusion that the omission was deliberate (in the sense of amounting to a conscious concealment of something that was perceived to be harmful to the appellants’ case). Neither did anything put to Mr Green by counsel for the respondents amount to a warning of the kind required by Kuhl.

258    The fourth omission related to the timing of Mr Green’s decision not to offer voluntary redundancies to employees whose positions might be assumed by those who would otherwise be made redundant. There were, it seems, two aspects of this omission, in the view of the primary Judge. The first related not to the timing of the decision as such but to Mr Green’s failure to disclose his awareness, by late June, of Mr Gorman’s proposal not to offer voluntary redundancies (see para 108 above). To the extent that anything was put to Mr Green in cross-examination which was critical of this omission from his affidavit, it was in the following passage:

Did you discuss the issue of voluntary redundancies, or the use of voluntary redundancies, with Mr Gorman prior to that decision being made?---Through the course of our meetings I tested the strength of some of the items in that review paper, yes.

That wasn’t my question, Mr Green. Did you discuss the issue of utilisation of voluntary redundancies with Mr Gorman?---I recall it being discussed as - if it was with Mr Gorman, I cannot recall, but it may have been.

I see. Now, there’s no reference in your affidavit to any document recording that the issue was considered; do you agree with that?---There’s nothing in my affidavit, no.

As noted earlier, the primary Judge found that Mr Green “sought to conceal the early date upon which he first considered not offering voluntary redundancies.” That finding implies wilfulness, the suggestion of which was not put to the witness.

259    The second aspect did relate to the timing of Mr Green’s decision as such (see para 109). Under cross-examination, he said that he had made the decision in late October 2014. That evidence was not accepted. This second aspect, was not, as such (ie apart from the first aspect referred to), the subject of any adverse comment about the omissions from Mr Green’s affidavit.

260    That brings me back to the primary Judge’s high-level conclusions as to the credibility of these three managers (see paras 67-72 above). As the survey which I have undertaken discloses, only in once instance – Mr Gorman in relation to the Scenario Planner – was the witness given a warning which, conformably with the principles discussed in Kuhl, would have been a sufficient precursor to findings of the kind made by his Honour. By contrast, Mr Green gave unchallenged evidence that he had not seen this document before (ie before he was asked about it in cross-examination). That is to say, far from giving a sufficient warning to Mr Green about his concealment of the scenario planner, counsel for the respondents chose not to challenge him on his evidence that he had not seen it before. Yet the Scenario Planner was one of only two documents which his Honour mentioned specifically as having been disclosed by “none of them” (a group of three including Mr Green) (see para 69 above).

261    The OOR report was the other document specifically mentioned by his Honour. As mentioned earlier, when asked why this was not included in his affidavit, Mr Green said that it was because he did not have it as “an attachment to a meeting or something that would prompt me to include it.” That may not have been very satisfactory evidence on the part of Mr Green, but it stands a good distance short, in my view, of providing a justification for the deliberate concealment findings made by the primary Judge. Mr Gorman too was included in those findings, but he was never even questioned about the absence from his affidavit of any reference to the July drafts of the OOR report, much less warned that that absence might lead to findings of that kind.

262    Neither, so far as I can see, was any of these witnesses warned of the prospect of a finding that, in his evidence-in-chief, he had “sought to conceal the fact that by the 1 August meeting Mr Green had been presented with a comprehensive and essentially complete proposal to abolish the relevant positions” (see para 70 above).

263    In my respectful view, the primary Judge’s credibility findings, in relation to Mr Stewardson, Mr Gorman and Mr Green, cannot stand alongside the joint judgment in Kuhl. In the light of the matters which I have canvassed above, to have made those findings amounted, in the circumstances, to a miscarriage of justice.

264    It remains to consider the consequences of that conclusion for the appeal in the present case. So much of the appeal as concerns the primary Judge’s decisions under cll 13.5.1 and 13.5.3 of the Agreement does not involve any contested question of fact: it was common ground that the Company did not make use of redeployment and voluntary redundancy, and did not investigate the reduction of contractors. The conclusions which I have reached in those areas may, therefore, stand. So much of the appeal as concerns his Honour’s decision under cl 7 should also, in my view, be allowed for reasons which, although involving factual issues as to which there was some contention, have nothing to do with the question whether the evidence of Mr Stewardson, Mr Gorman and Mr Green should have been rejected on the grounds that it was.

265    The primary Judge’s decision under ss and 340 and 346 of the FW Act is, however, in a different category. As mentioned above, it was his Honour’s rejection of the evidence of these three witnesses which left the appellants without a leg to stand on in their project of discharging the legal onus for which s 361 provides. I shall turn to that department of the appeal next, after which I shall consider the appellants’ challenge to his Honour’s reinstatement order.

SECTIONS 340 AND 346

266    In a case such as the present where allegations are made under s 340 or s 346 of the FW Act as to the reason why a party took adverse action, the actual reasons of the party concerned are themselves the subject of the relevant inquiry: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500. In that case, French CJ and Crennan J said (248 CLR at 517 [45]):

Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. [See, eg, General Motors-Holden’s Pty Ltd v Bowling (1976) … 2 ALR 605 at 617 per Mason J] Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker [see, eg, Pearce v WD Peacock and Co Ltd (1917) 23 CLR 199 at 208 per Isaacs J; at 211 per Higgins J] or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity. [See, eg, Harrison v P&T Tube Mills Pty Ltd (2009) 188 IR 270 at 276 [31]-[33]]

267    By the terms in which the primary Judge dealt with Mr Green’s credibility in the proceeding under appeal, his Honour effectively sterilised the evidence of the decision-maker whose reasons were the subject of the central allegation made against the Company. Almost as night follows day, his Honour’s emphatic and comprehensive rejection of Mr Green’s credibility was fatal to the Company’s defence to the respondents’ case.

268    The only rider which might be attached to that conclusion is that the primary Judge’s positive inferential findings as to Mr Green’s reasons, made for the purposes of s 550 of the FW Act, should not be overlooked. Having considered this aspect of the matter, however, I would not regard those findings as sufficient to overcome what I consider to be a miscarriage of justice in relation to Mr Green’s own evidence. Necessarily, that evidence lay at the centre of the Company’s defence under ss 340 and 346, and to attempt to decide the case without reference to it would inevitably deny the Company a fair and just consideration of that defence. With respect to s 550 itself, of course, absent a successful outcome for the respondents under s 340 or s 346, there would be nothing to which to attach the accessorial liability of Mr Green.

269    In the circumstances, I take the view that the primary Judge’s determination in favour of the respondents under ss 340 and 346 of the FW Act cannot stand. It does not follow, of course, that the respondents’ application in this department of the case must now be dismissed. They still have a case of adverse action which requires an answer from the Company. Despite its obvious inconvenience, the only course available to the court is to set aside that determination and to refer the case for rehearing. Because of the tenor of the findings made by the primary Judge, it would, in my view, be appropriate that such a rehearing proceed before another Judge.

REINSTATEMENT

270    As mentioned earlier, the primary Judge ordered that Mr Giddings and Mr Rosewarn be reinstated as employees of the Company. In the case of the latter, that order never depended on his Honour’s determination under ss 340 and 346 of the FW Act and, in the case of the former, it did not depend only on that determination (see para 152 above). Because I would dismiss so much of the appeal as relates to his Honour’s resolution of the respondents’ case under cll 13.5.1 and 13.5.3 of the Agreement, there remains a legal basis by reference to which the reinstatement of these men might be justified.

271    As it was before the primary Judge on 11 November 2015, so too on the present appeal, the Company’s only submission in this area of the case was that there was no power to order the reinstatement of Mr Giddings and Mr Rosewarn because the positions from which they had been dismissed no longer existed.

272    The power to order reinstatement is given by s 545 of the FW Act, subs (1) and (2) of which provide as follows:

(1)    The Federal Court or the Federal Circuit Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.

[notes omitted]

(2)    Without limiting subsection (1), orders the Federal Court or Federal Circuit Court may make include the following:

(a)    an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;

(b)    an order awarding compensation for loss that a person has suffered because of the contravention;

(c)    an order for reinstatement of a person.

It is to be noted that, while s 545(2)(c) refers to the reinstatement of a person, there is no mention of the situation (to use a neutral term at this point) to which the person is to be reinstated by an order of the kind contemplated. In the submission of the appellants, the provision can only mean that reinstatement may be ordered with reference to a position which exists at the time of the making of the order.

273    For that submission, the appellants relied on the judgment of the High Court in Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539. By that judgment, the court upheld an appeal from a judgment of the Full Court which had reversed the judgment of Madgwick J in Blackadder v Ramsey Butchering Services Pty Ltd (2002) 118 FCR 395. The case, which involved facts in 1999 and 2000, arose under Div 3 of Pt VIA of the Workplace Relations Act 1996 (Cth) (“the WR Act”). Briefly, the employee concerned had been dismissed because of his refusal to perform work which differed from that upon which he had previously been engaged, and for which he claimed that he did not have the requisite skills and training. His proceeding in the Australian Industrial Relations Commission (“the IR Commission”) succeeded, and his reinstatement was ordered under s 170CH(3) of the WR Act, which provided, at the time, as follows:

If the Commission considers it appropriate, the Commission may make an order requiring the employer to reinstate the employee by:

(a)    reappointing the employee to the position in which the employee was employed immediately before the termination. [sic]

(b)    appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination.

274    As set out in the reasons of Callinan and Heydon JJ (221 CLR at 557 [56]), the order by which the employee’s reinstatement was ordered was as follows:

1.    The [appellant] shall be reinstated to the position in which he was employed prior to the termination of his employment without loss of continuity of service or entitlements within 21 days from the date of this decision.

2.    The [appellant] is to be reimbursed for all lost salary and entitlements from the date of termination to reinstatement less the salary the parties agree the [appellant] received through alternative employment.’’

After an interval in which there was, it seems, a contretemps with respect to a medical examination which the employee was required to undergo, the employer took the employee back on to the payroll, but did not require him to attend for work. Madgwick J held that, by so proceeding, the employer was in breach of the IR Commission’s order. The order was construed as requiring the employer to go further than merely placing the employee on the payroll, and to provide work of the kind that the employee had been contracted to do.

275    In the High Court in Blackadder, there were four judgments. In the present appeal, the appellants relied only on certain things said in separate judgments by McHugh J and Kirby J. I shall come to that next, but it must be said at first that Blackadder cannot be regarded as direct authority for the appellants’ proposition that a statutory power to reinstate, without more, cannot be exercised where the position from which the employee in question had been dismissed no longer exists. In that case, the employee’s previous position undoubtedly still existed, the controversy being whether the employer complied with the order by placing the employee back on to the payroll and not giving him work to do in that position. Further, it is to be noted that both the terms of the legislation and the reinstatement order actually made in Blackadder differ materially from the corresponding matters in the present case.

276    In their outline on the present appeal, the appellants submitted that McHugh J had “explained that an order for reinstatement will depend on restoration to the position held prior to termination”. For that, the appellants relied on the following passage in his Honour’s reasons (221 CLR at 544-545 [14]):

To construe the power “to reinstate” as confined to restoring contractual or other legal rights fails to give full effect to the term “reinstate”. To reinstate means to put back in place. In this context, it means that the employment situation, as it existed immediately before the termination, must be restored. It requires restoration of the terms and conditions of the employment in the broadest sense of those terms. It empowers the Commission to do more than restore the contract of employment. So far as practicable, the employee is to be given back his “job” at the same place and with the same duties, remuneration and working conditions as existed before the termination.

Here his Honour was, as I read him, making the distinction which was critical in the case before him. To the extent that his Honour is to be understood as having said something of wider application, he was cautious to condition that statement with the rider, “so far as practicable”.

277    To understand the nature of the appellants’ reliance on the reasons of Kirby J in Blackadder, it will be necessary to set out a lengthy passage from his Honour’s reasons (221 CLR at 552-553 [43]-[44]):

“Position”, when used in s 170CH(3)(a), refers to the place in the employer’s commercial structure which the employee occupied before termination. It refers not only to the pay and other benefits which an employee may earn in a position, but also to the work which the person filling that position does. It follows that an employer, ordered to reinstate an employee by reappointing the employee to the position in which the employee was employed immediately before the termination, not only must recommence paying or providing the financial or other benefits attached to the position, but also must put the employee back to the performance of those duties which the employee was fulfilling before termination.

There are two principal reasons to reach this conclusion. First, s 170CH(3) provides for two different kinds of order for reinstatement. It distinguishes between, on the one hand, orders requiring an employer to reinstate an employee by reappointing the employee to the position in which the employee was employed immediately before termination, and, on the other, reinstatement by appointing the employee “to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination”. This distinction between reinstatement by reappointing to the former position and reinstatement by appointing to another position reveals that the concept of “position” is insufficiently described by reference only to the pay or other benefits which an employee is to receive from the employer. Yet in essence the respondent’s contention was that the appellant was reinstated to his former position because he was paid the same pay and benefits, and that it did not matter whether he was given any work to do. Secondly, both the drawing of that distinction and the Act’s reference to “position” rather than “employment” or “contract of employment” reveal that more is required by an order of the kind now in question than recreation of the contractual nexus that existed between the parties before the termination of employment or recreation of that nexus to the extent of giving the employee the benefits available under the terms and conditions which previously existed. Rather, reinstatement by reappointing to a former position requires the recreation of the circumstances of employment that preceded the termination. The contractual nexus between the parties must be re-established. The terms and conditions of that contract must be the same. The employer must provide work to be done by the employee of the same kind and volume as was being done before termination. In cases where that last element cannot be achieved (as, for example, where the work formerly done is no longer required) the form of reinstatement for which s 170CH(3)(a) provides would not be appropriate and the question would become whether the alternative form of reinstatement (by appointing to another position) should be made. [Emphasis in original]

278    For the most part, in this passage Kirby J was concerned with the distinction referred to, namely, formal reinstatement to a condition of employment and practical reinstatement into the position which the employee had previously held. However, with reference to the final sentence in the passage, the appellants in the present case submitted that his Honour was making another distinction, namely, between a situation in which the work formerly done by the employee is still part of the employer’s operations and a situation in which that work is no longer required. In his Honour’s perception, paras (a) and (b) of s 170CH(3) were, in effect, a reflex of a distinction of that kind. From there, the appellants submitted that s 545(2)(c) of the FW Act did not contain a provision the equivalent of s 170CH(3)(b), which was said to be an indication that the legislature intended that the power to order reinstatement was limited to an order requiring the dismissed employee to be placed back into the position which he or she had earlier occupied; and, therefore, that the power was not available at all where the position no longer existed.

279    Originally, the victimisation protections set out in s 9 of the Conciliation and Arbitration Act 1904 (Cth) did not contain a power to reinstate. Such a power was introduced when the section became s 5 in 1947, the power then being to direct “that the employee be reinstated in his old position or in a similar position”. That remained the situation until that Act was repealed in 1989. The replacement provision, s 334(7)(a) of the Industrial Relations Act 1988 (Cth) (“the IR Act”), contained a power to order reinstatement to the position which the dismissed employee occupied immediately before he or she was dismissed “or a position no less favourable than the position”. Substantial amendments in 1996 renamed this act the WR Act and included the presently relevant provisions in a new Pt XA titled, “Freedom of Association”. The power to order reinstatement as a remedy was expressed in s 298U(b) as a power to require the person found to have been in contravention of the relevant substantive provision “to reinstate an employee”. Further substantial amendments were enacted in 2005, the substantive prohibition now being found in s 792(1)(a) of the WR Act and the corresponding remedial powers being laid out in s 807. The latter now, for the first time since 1947, made no express reference to reinstatement, but used terms of such width that reinstatement must surely have been within their scope: “… any other order that the Court considers appropriate.” It was this provision which was, effectively, replaced by s 545 of the FW Act.

280    The provision with which the High Court was concerned in Blackadder had a different pedigree. It was first introduced into the IR Act as s 170EE in 1994, although then as a power to be exercised by the Court, rather than by the IR Commission. The power to reinstate was remedial apropos a dismissal which had been found to have been harsh, unjust or unreasonable, as distinct from the power discussed in the previous paragraph, which was related to legislative prohibitions on victimisation (as it was called) or, later, to legislative protections for freedom of association. It was the amendment of 1996 that transferred this jurisdiction to order reinstatement from the Court to the IR Commission (as s 170CH(3)), and it was in that setting that Blackadder was decided.

281    Given this bifurcated legislative history, I do not, with respect, read the judgments in Blackadder as limiting with respect to the construction of s 545(2)(c) of the FW Act. To the contrary, that provision is the last in a long line of provisions which have, until 1996 expressly, contemplated that reinstatement may be to a position other than that from which the employee in question was dismissed. The more general language observed in recent legislation, including the FW Act, is unlikely, in my view, to have been intended to narrow the range of reinstatement remedies that was traditionally available.

282    It remains only to acknowledge the reality that s 545(2)(c) now applies in contexts which are not limited to contraventions of the victimisation/freedom of association provisions of the legislation. That it does so was not contested by the appellants. The broader scope of its application does not, however, affect the constructional considerations to which I have referred.

283    The submission that the court lacked the power to order the reinstatement of Mr Giddings and Mr Rosewarn was the only one which the appellants made in this department of the case. They offered no criticism of the discretionary basis of the primary Judge’s order. In the circumstances, the appeal from the making of that order should be dismissed.

DISPOSITION OF THE APPEAL

284    For the above reasons, I would grant the appellants leave to appeal and would allow the appeal in part. How that outcome should be expressed in the orders now to be made by the Full Court may be attended, in one respect at least, by some difficulty. Save for the orders which the primary Judge vacated, by consent, on 23 November 2015, the orders made by his Honour on 16 November 2015 were:

1.    The Second Applicant be reinstated to his employment with the First Respondent with effect from 11 December 2014.

2.    The amount of $119,651.57 (gross) of the termination payments paid by the First Respondent to the Second Applicant on about 11 December 2014, be treated as compensation in respect of back pay for the period between 11 December 2014 and 16 November 2015.

3.    The Third Applicant be reinstated to his employment with the First Respondent with effect from 11 December 2014.

4.    The amount of $62,437.32 (gross) of the termination payments paid by the First Respondent to the Third Applicant on about 11 December 2014, be treated as compensation in respect of back pay for the period between 11 December 2014 and 16 November 2015.

5.    Orders 1 and 3 are to take effect from 17 November 2015.

6.    The balance of the termination payments paid to the Second Applicant by the First Respondent, being an amount of $189,044.72, be repaid to the First Respondent within 28 days of these orders being made.

7.    The balance of the termination payments paid to the Third Applicant by the First Respondent, being an amount of $152,274.95, be repaid to the First Respondent within 28 days of these orders being made.

285    Consistently with the disposition of the appeal which I favour, no substantive change should be made to the operative terms of any of these orders. However, the respondents’ case for the reinstatement of Mr Giddings relied both on ss 340 and 346, on the one hand, and s 50, constituted by a contravention of cll 13.5.1 and 13.5.3 of the Agreement, on the other hand. The appellants’ appeal is against the order itself, but they challenged the correctness of two independent judicial determinations, either of which, if correctly made, would have been sufficient to justify the order. In the view I take, they should succeed on one challenge, but fail on the other. The respondents’ claims under ss 340 and 346 cannot, of course, be dismissed. Neither can a final declaration be made as to how those claims ought to have been resolved, a course which attracted itself to the High Court in Driclad Pty Ltd v Commissioner of Taxation (1968) 121 CLR 45. In the circumstances, the correct course would be to order that the disposition of the respondents’ claims under ss 340 and 346 of the FW Act be set aside. Pursuant to s 28(1)(f) of the Federal Court Act, I would grant a new trial of those claims. Although productive of obvious inconvenience, I cannot see any fair alternative to a direction that another Judge preside over such a new trial.

286    I would order that, to the extent that the respondents’ claims under s 50 of the FW Act were based on allegations of contraventions of cl 7 of the Agreement, those claims be dismissed.

287    Otherwise, I would dismiss the appeal.

Associate:

Dated:    5 August 2016

REASONS FOR JUDGMENT

RANGIAH J:

288    This is an application for leave to appeal from a judgment of a single judge of this Court given on 8 October 2015 and 16 November 2015. The application was not opposed, and to the extent that leave is required, it should be granted. I will proceed to consider the appeal.

289    The first appellant, Port Kembla Coal Terminal Ltd (“PKCT”) operates a coal terminal at Wollongong in New South Wales. The second appellant, Peter Green, is PKCT’s General Manager.

290    The genesis of this proceeding is a decision by Mr Green to terminate the employment of the second, third and fourth respondents with PKCT on the basis that their positions were redundant. The date on which he decided that the positions would be abolished is controversial.

291    The second respondent, Adam Giddings, occupied the position of Long Term Planner with PKCT. He was also the long-standing Lodge President of the first respondent, the Construction, Forestry, Mining and Energy Union (“the Union”), at the coal terminal. In that capacity, he played a leading role in the Union’s industrial activities at the terminal.

292    The third respondent, Jason Rosewarn, was employed as Facilities Maintenance Engineer by PKCT. The fourth respondent, Jennifer Arber, was employed as an Administration Assistant.

293    Mr Giddings, Mr Rosewarn and Ms Arber were each notified on 11 December 2014 that their positions had been made redundant and their employment had been terminated.

294    The primary judge made orders reinstating Mr Giddings and Mr Rosewarn to their employment with PKCT, amongst other orders. The orders were based on the following findings:

(a)    PKCT contravened s 50 of the Fair Work Act 2009 (Cth) by failing to comply with cl 7 of the Port Kembla Coal Terminal Enterprise Agreement 2012-2015 (“the Agreement”), which required PKCT to consult with its employees and the Union when it was considering introducing major changes which were likely to have a detrimental or significant effect on employees.

(b)    PKCT contravened s 50 of the Fair Work Act by failing to comply with cl 13.5 of the Agreement, which required PKCT to make use of redeployment and voluntary redundancy and to investigate all avenues to avoid forced redundancies, including the reduction of contractors.

(c)    PKCT contravened ss 340 and 346 of the Fair Work Act by taking adverse action against Mr Giddings on the basis that he had exercised workplace rights, was an officer of the Union and had engaged in industrial activity.

(d)    Mr Green contravened ss 340 and 346 of the Fair Work Act because he was, within s 550 of that Act, a person involved in PKCT’s contraventions.

295    The trial before the primary judge was heavily concerned with the credit of Mr Green, as well as two other managers engaged by PKCT, John Gorman and Roger Stewardson. Their credibility was relevant to the second, third and fourth findings described above. His Honour found that important parts of the managers’ evidence were not reliable, and that finding was the focus of much of the appellants’ argument in the appeal.

296    The appellants’ oral submissions in the appeal may be broadly summarised as follows:

(a)    The primary judge misconstrued and misapplied cl 7 of the Agreement.

(b)    His Honour misconstrued cl 13.5 of the Agreement.

(c)    His Honour erred in finding that PKCT and Mr Green had contravened ss 340 and 346 of the Fair Work Act, including by finding that much of the evidence of Mr Green, Mr Gorman and Mr Stewardson was unreliable.

(d)    His Honour erred in ordering the reinstatement of Mr Giddings and Mr Rosewarn to positions that no longer exist.

297    I will describe the factual background to the proceeding and then consider each of the appellants’ oral submissions in turn.

Factual background

298    The facts directly relevant to the allegations that the appellants contravened ss 50, 340 and 346 of the Fair Work Act are in short compass. Many of the facts were uncontentious.

299    In 2011, PKCT announced that it would upgrade the infrastructure and facilities at its terminal as it expected a significant increase in demand for coal over the next decade. However, conditions in the Australian coal industry began to deteriorate. PKCT’s throughput of coal decreased significantly between 2011 and 2014, as did its revenue, but its permanent employees increased from 93 to 106 in the same period.

300    In March 2014, Mr Green assigned Mr Gorman (the Operations Manager) to conduct an operational review of PKCT’s business. Its purpose was to identify ways in which PKCT could achieve efficiencies and savings in order to reduce costs, including investigating whether any positions were no longer needed. The primary judge held that in considering the abolition of positions, PKCT was engaged in a bona fide attempt to reduce its costs.

301    Mr Giddings gave evidence that in his 34 years at the terminal, PKCT had never before used forced redundancies to reduce its staffing levels. In the past, it had avoided forced redundancies by offering voluntary redundancies and redeploying employees into the newly vacant positions. That evidence was not disputed and the primary judge accepted it.

302    In April or May 2014, Mr Gorman commenced his consideration of whether any positions should be abolished in order to save costs. Mr Gorman was assisted by Mr Stewardson (the Engineering Manager), Ms Briony Ragen (the Human Resources Manager) and Mr Flavio Tonini (the Business Services Manager). There were a number of meetings between various combinations of those managers between May and July 2014. Mr Gorman also kept Mr Green informed as to the progress of the operational review.

303    On 1 August 2014, Mr Gorman, Mr Stewardson and Ms Ragen (“the senior managers”) met with Mr Green. They conveyed their recommendation to Mr Green that the Long Term Planner position (occupied by Mr Giddings), Facilities Maintenance Engineer position (occupied by Mr Rosewarn) and one or two Administration Assistant positions be abolished. They recommended that PKCT should not offer voluntary redundancies in order to avoid forced redundancies, other than in relation to the Administration Assistant position. They also recommended that Mr Giddings and Mr Rosewarn should only be redeployed into contract positions occupied by contractors engaged on a full-time and permanent basis (when, in fact, there were no such contract positions). The result was that the employment of Mr Giddings and Mr Rosewarn would inevitably be terminated if Mr Green accepted the recommendations.

304    Mr Green deposed that he did not accept the recommendations of the senior managers at that time, but considered the recommendations over the next 2½ months until mid-October 2014. He gave evidence that he did not decide that voluntary redundancies would only be offered in relation to the Administration Assistant position until mid-October 2014; and did not decide that PKCT’s consideration of replacing contractors would be limited to full-time and permanent contract positions until 10 December 2014. To some extent, Mr Gorman and Mr Stewardson appeared to corroborate Mr Green’s evidence in this regard. However, the primary judge rejected this aspect of the evidence of Mr Green, Mr Gorman and Mr Stewardson. His Honour found that Mr Green made the decision to abolish the positions of Mr Giddings, Mr Rosewarn and at least one Administration Assistant at or shortly after the 1 August 2014 meeting. His Honour also found that Mr Green decided at the same time not to offer voluntary redundancies in relation to Mr Giddings’ and Mr Rosewarn’s positions and not to reduce contractors.

305    On 2 December 2014, Mr Giddings and Mr Rosewarn were informed that PKCT proposed to abolish their positions. On the same day the three Administration Assistants were informed that it was proposed to abolish one of their positions; and that if none of them elected to take a voluntary redundancy, one of them would be made compulsorily redundant.

306    The Agreement required consultation between PKCT and the Union about the proposed redundancies. The consultations began on 2 December 2014. The Union argued that PKCT should offer voluntary redundancies with a view to redeploying Mr Giddings and Mr Rosewarn into any positions that became vacant. There was also discussion about redeployment of Mr Giddings and Mr Rosewarn into contract positions. PKCT maintained that it was not obliged to offer voluntary redundancies in relation to “stand-alone” positions such as Long Term Planner and Facilities Maintenance Engineer, and was not obliged to consider redeployment into contract positions unless the contractors were engaged on a full-time and permanent basis.

307    On 11 December 2014, Mr Green informed Mr Giddings and Mr Rosewarn that their employment at PKCT had been terminated due to redundancy, effective immediately. On the same day, Mr Tonini told Ms Arber that her position had been selected for redundancy and that her employment had been terminated, effective immediately.

308    The primary judge found that the evidence of Mr Green, Mr Gorman and Mr Stewardson was “quite unreliable” in a number of respects. Mr Green gave express and specific evidence that the termination of Mr Giddings’ employment was not related to his industrial activities or his involvement with the Union. However, his Honour found that he could not accept that aspect of Mr Green’s evidence because other aspects of his evidence were so unreliable.

309    There were two important factual disputes which were directly relevant to the allegations of contraventions of the Fair Work Act. The first issue was when Mr Green had decided to abolish the positions. The date of the decision was relevant to when PKCT was required to consult the employees and their representatives under cl 7 of the Agreement (assuming that clause applied). As I have said, his Honour found that Mr Green had made his decision on or shortly after 1 August 2014, finding that his evidence that he made his decision in mid-October 2014 was not credible.

310    The second important factual dispute concerned Mr Green’s reasons for his decision to make Mr Giddings’ position redundant. That issue was relevant to the respondents’ allegations that PKCT and Mr Green had contravened ss 340 and 346 of the Fair Work Act. As I have said, his Honour found that Mr Green’s evidence on this issue was not credible.

311    While there were many other factual matters in dispute, those matters were relevant to the general credibility of Mr Green, Mr Gorman and Mr Stewardson, rather than being directly relevant to the allegations of contraventions of the Fair Work Act.

The finding that PKCT breached cl 7 of the Agreement

312    The primary judge found that PKCT contravened s 50 of the Fair Work Act by failing to comply with cl 7 of the Agreement. His Honour held cl 7 required PKCT to consult its employees and their representatives. Further such consultation was required before making its decision to make the positions of Mr Giddings, Mr Rosewarn and Ms Arber redundant; and that PKCT had failed to do so.

313    Clause 7 of the Agreement provides:

7.    Workplace Change and Consultation

7.1.    Consultation over significant change or effect will occur where:

a.    the Company is considering introducing a major change to production, program, organisation, structure, technology, shift arrangements, work organisation or the level of outsourcing in relation to its enterprise; and

b.    the change, if implemented, is likely to have a detrimental or significant effect on employees.

7.2.     The purpose of consultation is to:

a.     Resolve issues, where possible, at the workplace and avoid unnecessary problems by identifying and discussing matters of actual or potential concern as close to the workplace as possible;

b.     Improve the level of understanding between management, Employees and Employee Representatives by exchanging relevant information on a timely basis; and

c.     Deliver an efficient decision-making process by ensuring Employees are aware of a review of their work area that could lead to significant change or effect on working arrangements and allowing Employees and Employee Representatives inputs to be taken into consideration through a process of consultation, prior to a final decision being taken by management.

7.3.     The Company will give prompt and genuine consideration to matters raised by the relevant Employees and their Employee Representatives.

7.4.     The Company will notify the relevant Employees and their Employee Representatives of the proposed change as soon as a decision has been made.

7.5.     The consultation process may be modified by agreement between the parties.

7.6.     Significant change or effect may include but is not limited to:

a.    major changes in the composition, operation or size of the Company’s workforce; or

b.     the skills required; or

c.     the significant restructuring of work organisation; or

d.     proposals by the Company to outsource services or contract out services currently provided by Company Employees.

7.7.     The above definition seeks to illustrate that the changes requiring extensive consultation generally need to have broad impacts and be likely to affect a significant part of the Company’s operations or affects Employees’ working arrangements.

7.8.     The consultations will be conducted within a context which acknowledges the statutory obligations and responsibilities of the Company and where the Employees and Employee Representatives do not have a power of veto over the Company’s final decision. This does not affect the right of the Employees or their representatives to notify a dispute through the agreed Dispute Settlement Procedure.

Construction and application of cl 7

314    Before the primary judge, PKCT argued that cl 7 did not apply because three redundancies from the then workforce of 98 employees did not amount to “major change” under cl 7.1(a), and that such change was not “likely to have a detrimental or significant effect on employees” under cl 7.1(b). His Honour implicitly accepted that argument, but decided that cl 7 applied for a different reason. His Honour accepted the respondents’ submission that PKCT’s implementation of forced redundancies was an important change in its approach to achieving reductions in its workforce; and that change had implications for the employees more generally. PKCT had never previously imposed forced redundancies, and had previously offered voluntary redundancies and redeployed employees into the positions of those who accepted the redundancy offers. His Honour held that PKCT’s decision to implement forced redundancies without first offering voluntary redundancies, while only considering replacing contractors engaged on a full-time and permanent basis, was a major change. That change was likely to have a detrimental and significant effect on the security and conditions of employment at the terminal.

315    His Honour considered that cll 9.2 and 9.3, which require that there must be compliance with cl 7 in a “redundancy situation”, indicate that the Agreement should be read such that a decision by PKCT to implement forced redundancies involves a “significant change or effect” under cl 7.1.

316    However, for there to be “significant change or effect” under cl 7.1, it is not enough that there is “major change”, or that the change is likely to have a “detrimental or significant effect on employees”. There is a further requirement in cl 7.1 that the major change must be:

…to production, program, organisation, structure, technology, shift arrangements, work organisation or the level of outsourcing in relation to its enterprise.

317    The primary judge’s reasons do not deal with the question of whether the major change comes within any of these descriptions. It is not clear whether the parties addressed his Honour on this issue, but they did make submissions on the issue in the appeal. The appellants submit that the major change identified by his Honour does not fall within any of the requisite areas. The respondents submit that the change in approach to redundancies falls within “work organisation”, or “organisation”, but did not explain why that is so.

318    In my opinion, the phrase “major change…to…work organisation” refers to the change in the manner in which work is done, managed, arranged or otherwise organised in PKCT’s enterprise. The phrase “major change…to…organisation” has a broader meaning that extends to the way the enterprise itself is arranged, managed or organised. His Honour decided that cl 7 applies because there was a major change to the way in which reductions in the workforce are achieved. Such change was not a change to the manner in which work is done, arranged, managed or otherwise organised, but was a change to the way an aspect of the enterprise is managed. In my opinion, the change identified by his Honour falls within the description of “organisation”.

319    I respectfully agree with the primary judge’s view that the change in PKCT’s approach to redundancies was a “major change” to “organisation” of its enterprise. The impact of the change in approach cannot be measured merely by the fact that only two employees were directly affected. The change had the potential to affect other employees in the future. PKCT’s approach was now that it was not required to make use of voluntary redundancies in respect of “stand-alone positions”. There were 14 such positions within the PKCT Engineering Team alone, representing approximately 15% of the workforce. In my opinion, his Honour was correct to find that the change was a major one which was likely to have a detrimental or significant effect on employees.

320    The appellants argued that even if cl 7 applied, PKCT had complied with its obligations under that clause to consult. PKCT consulted its employees and the Union from 2 December 2014 to 10 December 2014. They submitted that any obligation to consult under cl 7 arose only after PKCT had decided to propose the forced redundancies. They relied on cl 7.4 which requires PKCT to notify the relevant employees and their representatives of the proposed changes “as soon as a decision has been made”.

321    The primary judge rejected the appellants’ argument. His Honour considered that cll 7.1 to 7.8 should be read sequentially such that: cl 7.1 requires PKCT to consult when it is “considering” major change; cl 7.2 explains the purpose of consultation and provides that it is to occur “prior to a final decision”; and cl 7.3 requires PKCT to give prompt and genuine consideration to the matters raised by the employees in the consultation. In that context, cl 7.4 describes PKCT’s obligation after consultation has been concluded, not before it has been commenced.

322    The primary judge noted that the consultation obligation in cl 7 find its roots in the Termination, Change and Redundancy Case (1984) 294 CAR 175 and the Termination, Change and Redundancy Case (No 2) (1984) 295 CAR 673. In that context, his Honour considered that the following observations of Logan J in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591 at [44] were relevant to cl 7:

…A key element of [the content of an obligation to “consult”] is that the party to be consulted be given notice of the subject upon which that party’s views are being sought before any final decision is made or course of action embarked upon...[T]he word [consult] always carries with it a consequential requirement for the affording of a meaningful opportunity to that party to present those views.

323    Although his Honour gave further reasons for rejecting the appellants’ submission that PKCT’s obligation to consult under cl 7 arose only after it had made a decision to propose the forced redundancies, it is enough to refer to these. I respectfully concur with his Honour’s opinion that PKCT’s obligation arose when it was considering the major change.

324    The primary judge considered whether PKCT had complied with its obligation to consult when it was considering the major change. His Honour found that it had not, as Mr Green had made the decisions to abolish the positions and not to offer voluntary redundancies on or shortly after 1 August 2014, whereas PKCT began consulting with its employees and the Union on 2 December 2014. His Honour’s finding as to when Mr Green made the decisions is controversial in this appeal, but I consider that his Honour’s finding was correct for reasons I will discuss later.

325    The primary judge held that even if Mr Green did not decide to abolish the positions and not to offer voluntary redundancies on or shortly after 1 August 2014, and instead merely “considered” the proposal, the consultation obligation under cl 7 was triggered. I respectfully agree. It is clear that Mr Green was at least considering accepting the recommendations of the senior managers from 1 August 2014. PKCT’s obligation to consult arose at that time.

326    The primary judge also held that cl 7 required genuine consultation, but that PKCT’s consultation was not genuine for a number of reasons. PKCT was not prepared to genuinely consider any concerns or alternative propositions put forward by the Union - PKCT’s position was fixed by the time consultation began. The evidence showed that the senior managers had a “negative approach to consultation”, which demonstrated that PKCT did not genuinely consult. Nor did PKCT provide sufficient information to enable its employees and their representatives to understand the proposal and its rationale. Further, cl 7.2(c) of the Agreement requires the sharing of relevant information on a timely basis, and that obligation was not complied with. Finally, PKCT did not provide the Union with sufficient time to properly consider the proposed changes or to allow genuine consultation to occur.

327    I will leave aside consideration of his Honour’s findings that PKCT did not engage in genuine consultation for the moment. His Honour’s views as to PKCT’s approach to consultation influenced his findings that much of Mr Green’s evidence was unreliable.

Construction and application of cl 9

328    In the appeal, the respondents also argued that the obligation to consult under cl 7 was triggered by cl 9 of the Agreement. It is not clear whether that argument was raised before the primary judge. His Honour had regard to cl 9 of the Agreement, but only as a factor influencing the construction of cl 7 and did not separately consider the argument now raised by the respondents. In any event, the argument was addressed by both sides in the appeal and I will consider it for completeness.

329    Clause 9 of the Agreement provides, relevantly:

9.     Employment Security

9.1.     The parties acknowledge that job security is a mutual obligation. Security of employment is important for improving working relationships, trust and cooperation with change. The parties do not want an environment where everyone is working in fear of losing their employment. The parties want an environment where people focus on doing their jobs safely, well and implementing improvement actions. Real employment security can only be achieved by successful business performance.

9.2.     It is not intended that the number of direct, full time employees engaged by the Company under this Agreement at the date that it is approved will be reduced over the life of the Agreement. However, the Company retains the right to make such changes should circumstances arise which, in its opinion, necessitate a change to the numbers of employees per shift or the skills components of teams. In such circumstances the Company will comply with Clause 7 (Workplace Change and Consultation) prior to the implementation of any change to manning levels.

9.3.     If a redundancy situation still exists after the consultation process in Clause 7 has been complied with, this will be dealt with in accordance with Clause 13.5 Redundancy.

(Underlining added.)

330    The appellants argue that the three redundancies did not result in a “change to the numbers of employees per shift or the skills components of teams”. They submit that, accordingly, cl 9.2 did not require PKCT to comply with cl 7. The respondents submit that the numbers of employees per shift was reduced because the affected employees were “day shift” workers. They also argue that the “skills components” of teams were changed by the redundancies.

331    The respondents’ first argument depends on whether the affected employees worked in a “shift” within the meaning of that expression in cl 9.2. The term “shift” is not defined in the Agreement.

332    Clause 14 deals with the hours of work for “flexible dayworkers” and “flexible shiftworkers”. Clause 1 defines “flexible shiftworker” as “an Employee who performs Shiftwork, but can move to an alternative shift”, while “flexible shiftwork” is “work carried out according to a flexible shift process with shifts of Employees”. “Flexible dayworker” is defined as “an Employee who works the notional Daywork roster”.

333    Clause 14.1 sets out the ordinary hours of work. Flexible dayworkers’ hours are between 6  am and 10 pm Monday to Friday. Flexible shiftworkers work a “Day Shift” between 7 am and 7 pm or a “Night Shift” between 7 pm and 7 am. Clause 14.3 provides that flexible shiftworkers work a 12 hour shift and change between day shift and night shift over a four week cycle.

334    The Agreement distinguishes between “flexible dayworkers” and “flexible shiftworkers”. The distinction is that dayworkers ordinarily work only between 6 am and 10 pm Monday to Friday, while shiftworkers are not restricted to those hours and days and also change between day shift and night shift. The terminal operates on a 24 hour, 7 day a week basis.

335    In view of the express description in cl 14.1.3 of “Day Shift” as being from 7 am to 7 pm, and as referable to a shift worked by flexible shiftworkers, I reject the respondents’ contention that flexible dayworkers can be described as working a “day shift”. In the context of the Agreement as a whole, the phrase “a change to the numbers of employees per shift” refers to the “Day Shift” and “Night Shift” worked by flexible shiftworkers. Mr Giddings, Mr Rosewarn and Ms Arber cannot be said to be “day shift” workers because they were “dayworkers”, as opposed to “shiftworkers”.

336    The respondents also argued that cl 9.2 applied because the “skills components” of teams were changed by the redundancies. Again, it is doubtful that this argument was raised before the primary judge. In any event, there is no evidence from which a comparison of the skills components of any “team” before and after the redundancies can be made. The respondents cannot demonstrate that there was a reduction in the skills component of teams.

337    I conclude that PKCT did not breach cl 7 on the basis that cl 9.2 required it to consult with its employees and their representatives before deciding to make the positions redundant.

338    However, as I have said, the primary judge was correct to decide that cl 7 applied on the basis that there was “major change”, and PKCT breached cl 7 by failing to consult when it was “considering” making the change. His Honour’s finding that PKCT breached cl 7 of the Agreement, and thereby contravened s 50 of the Fair Work Act, should be upheld.

The finding that PKCT breached cl 13.5 of the Agreement

339    The primary judge found that PKCT contravened s 50 of the Fair Work Act by failing to comply with cl 13.5 of the Agreement. His Honour held that cl 13.5.1 required PKCT to make use of redeployment and voluntary redundancy in relation to Mr Giddings’ and Mr Rosewarn’s positions, but that PKCT had failed to do so. His Honour found that Mr Giddings and Mr Rosewarn had suitable skills and competencies to properly perform a number of other positions within PKCT.

340    The primary judge also held that PKCT contravened cl 13.5.3 by restricting its consideration of reducing contractors’ positions to full-time and permanent contracts (the term “permanent contract” was used by the parties to refer to a contract of indefinite duration).

341    However, his Honour accepted that PKCT had complied with cll 13.5.1 and 13.5.3 in relation to Ms Arber’s position. PKCT had sought expressions of interest in voluntary redundancy from the three Administration Assistants, and there were no contract positions for which Ms Arber was qualified.

342    Clause 13.5 of the Agreement provides:

13.5.    Redundancy

13.5.1.    The Company undertakes that in managing manning levels to suit the business needs it will make use of redeployment and voluntary redundancy prior to implementing any forced redundancies.

13.5.2.    If workforce reductions for Employees bound by this Agreement were to become necessary, they will be undertaken through the consultative process described in this Agreement.

13.5.3.    The Company shall investigate all avenues to avoid forced redundancies, including the reduction of contractors, where the work performed by contractors can be performed by Employees of the Company, having regard to the skills and competencies of Employees and the nature of the work in question.

13.5.4.    If a redundancy situation still exists after the above steps have been taken, the process for determining required compulsory redundancies within a classification will be through consultation, including taking length of service into account.

13.5.5.    Should the need for redundancy arise, the PKCT standard severance package of four weeks pay in lieu of notice and three weeks pay per each year of service paid at the Special Purpose Rate shall apply, unless otherwise agreed or determined.

Construction of cl 13.5.1

343    The respondents argued that PKCT contravened cl 13.5.1 of the Agreement by failing to seek expressions of interest in voluntary redundancy prior to implementing forced redundancies. It was common ground that PKCT did not seek such expressions of interest in relation to Mr Giddings’ and Mr Rosewarn’s positions. The respondents advanced a construction that requires PKCT to “make use of redeployment and voluntary redundancy” in every case where it proposes to make a position redundant.

344    In response, PKCT submitted before the primary judge, and in the appeal, that the use of the general words “managing manning levels” indicates that cl 13.5 merely imports a general obligation to investigate measures to avoid forced redundancies prior to particular positions being identified for redundancy. Clause 13.5 would operate where PKCT decides that the workforce, or a particular stream in the workforce, needs to be reduced by a particular number of employees. In addition, cl 13.5.1 would only apply in relation to a proposal to make a particular position redundant where the potentially redundant position is a generic position occupied by more than one person (such as the Administration Assistant position). PKCT submits that it is not obliged to seek expressions of interest in voluntary redundancy from employees who are not potentially affected by its decision and the clause does not apply where it proposes to abolish a “stand-alone” position.

345    The primary judge construed cl 13.5.1 of the Agreement as requiring PKCT to make use of redeployment and voluntary redundancy before imposing forced redundancy on any affected employee. His Honour said that PKCT was obliged to seek expressions of voluntary redundancy, consider the expressions of interest received and decide whether any of the affected employees had suitable skills and competencies to properly perform the work; and if the affected employees had suitable skills and competencies, PKCT was obliged to select persons for voluntary redundancy and place the affected employees into the vacated position. However, his Honour’s finding that PKCT had breached cl 13.5.1 was only based on its failure to seek expressions of interest in voluntary redundancy before deciding to terminate the employment of Mr Giddings and Mr Rosewarn. In light of that limited finding, it was unnecessary for his Honour to comprehensively decide what the clause would have required if PKCT had sought expressions of interest. It remains unnecessary to do so in the appeal.

346    The primary judge rejected PKCT’s argument that the clause only applied to generic positions occupied by more than one person by reference to the text and historical context of the provision. It is only necessary to refer to two of the reasons given by his Honour.

347    As to text, his Honour held that the phrase “any forced redundancies” in clause 13.5.1 contemplates that there are no exceptions to the requirement to make use of redeployment and voluntary redundancy. Therefore, the provision applies to redundancy in relation to both generic and stand-alone positions.

348    As to historical context, his Honour referred to the observation of Madgwick J in Kucks v CSR Ltd (1996) 66 IR 182 at 184 that the framers of an industrial instrument “may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon”. The primary judge concluded at [346]:

The evidence shows that PKCT had previously used voluntary redundancies to achieve reductions in manning levels and it had never previously imposed forced redundancies. Construed in this context cll. 13.5.1 and 13.5.3 indicate that forced redundancies are only to be imposed after the possibility of redeployment into vacancies created through offers of voluntary redundancy is explored. In broad terms, forced redundancy is to be a last resort.

349    The ordinary use of the word “redundancy” in an industrial context refers to a job, or position, becoming redundant, although the expression is sometimes used to also refer to the termination of employment following a redundancy: Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at 249 (Gleeson CJ and McHugh J); National Tertiary Education Union v La Trobe University [2014] FCA 1330 at [27]-[28] (Tracey J). The expressions “redundancy” and “redundancies” in cl 13.5.1 are used in both senses. The expression “voluntary redundancy” refers to a situation where the employer decides to make positions redundant and individual employees volunteer to have their employment terminated. The expression “forced redundancies” refers to the termination of employment following a decision to make positions redundant where employees have no choice to remain.

350    The textual consideration pointed to by his Honour (the phrase “any forced redundancies”) indicates that the clause is aimed at avoiding forced redundancies where PKCT decides to reduce its manning levels, whether by the abolition of particular positions or a general reduction in the size of the workforce or the number of workers occupying generic positions. I respectfully agree with his Honour’s conclusion that there are no exceptions contemplated by cl 13.5.1 to the requirement to make use of redeployment and voluntary redundancy.

351    The appellants submit that clause 13.5.1 is ambiguous. The Court may have regard to the historical context in which a provision of an industrial instrument has evolved in order to resolve an ambiguity in the provision: Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 517 (Burchett J); Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829; 318 ALR 54 at [36] (Tracey J). Clause 13.5.1 must be construed against the background that PKCT’s practice over many years had been to make use of voluntary redundancy and redeployment in order to avoid forced redundancies. I respectfully agree with his Honour’s conclusion that the historical context indicates that the clause is not to be given the narrow construction contended for by the appellants.

352    The clause requires PKCT to make use of voluntary redundancy and redeployment when it proposes to reduce its manning levels, whether by a general reduction in the size of the workforce or a particular stream, and whether by abolition of a generic position or a stand-alone position. PKCT was required to call for expressions of interest in voluntary redundancies prior to making Mr Giddings’ and Mr Rosewarn’s positions redundant, and failed to do so. Beyond that, it is unnecessary to decide precisely what is meant by the phrase “make use of”.

Construction of cl 13.5.3

353    The primary judge also held that PKCT breached cl 13.5.3 of the Agreement by restricting its consideration of reducing contract positions to avoid forced redundancies only to those contractors engaged on a full-time and permanent basis. His Honour noted that there were between 55 and 65 contractors engaged at the terminal, and found that Mr Giddings and Mr Rosewarn had skills and competencies suitable for a number of contract positions. His Honour held that cl 13.5.3 requires PKCT to undertake a bona fide investigation into reducing contractors and redeploying the affected employees into contract positions and that in relation to Mr Giddings and Mr Rosewarn, PKCT had failed to do so.

354    PKCT argued before the primary judge, and in the appeal, that cl 13.5.3 requires investigation only of whether work done by contactors could be performed by employees of PKCT as full-time and permanent employees, as the positions it abolished were full-time and permanent positions.

355    His Honour decided that PKCT’s construction of cl 13.5.3 was not supported by its terms. The clause focusses on the work undertaken by contractors, but does not advert to the nature of a contractor’s role. His Honour found that when the Agreement was entered, there were no contractors engaged on a full-time and permanent basis, so in that context, the parties could not have intended to restrict the clause so that it applied only to full-time and permanent contractors.

356    I respectfully agree with his Honour’s view that cl 13.5.3 does not allow PKCT to limit its investigation of reduction of contractors to contractors engaged on a full-time and permanent basis. I can see no warrant for reading down the clause in the way contended for by PKCT. As his Honour pointed out, cl 15.5.3 refers to the work performed by contractors. It requires the company to consider whether the work performed by contractors can be performed by employees, having regard to the skills and competencies of the employees and the nature of the work in question. The clause does not refer to whether contractors are engaged on a full-time or part-time basis, or on permanent or temporary contracts. It would be artificial to read the clause as if it allows PKCT to exclude investigation of contract positions that are for a fixed duration or on something less than a full-time basis.

357    By restricting its consideration of reducing contract positions to those on a full-time and permanent basis, the company failed to investigate all avenues to avoid forced redundancies. It therefore breached cl 13.5.3 of the Agreement.

358    The appellants criticise the view expressed by his Honour that PKCT’s obligation under cl 13.5.3 is not limited to investigating all avenues to avoid forced redundancies, but also requires the company to take such avenues. Having found that PKCT breached cl 13.5.3 by failing to investigate all avenues, it was unnecessary for his Honour to consider what, if anything, PKCT was required to do on the theoretical basis that it had conducted the necessary investigation. The issue was not fully argued in the appeal and it is unnecessary to decide it.

359    His Honour also engaged in an analysis of what the requirement to investigate “all avenues” was in respect of the reduction of contractors. For example, his Honour said the obligation extended to considering the suitability of bundling work performed by different part-time contractors into a single position. Again, it was unnecessary for his Honour to engage in such an exercise for the purposes of the case, and it is unnecessary to decide the issue in the appeal.

360    The appellants submitted before the primary judge and before this Court that it had complied with its obligation under cl 13.5.3 by preparing a “matrix” of positions at PKCT, which considered the suitability of employees whose positions were to be abolished being redeployed into contract positions. His Honour rejected that argument, noting that as the author had not been called to give evidence, the document’s purpose was uncertain.

361    In the appeal, the appellants were unable to refer to any further evidence concerning the purpose and use of the “matrix”. Merely pointing to its existence does not demonstrate that PKCT undertook the investigation required by cl 13.5.3. In fact, PKCT’s primary argument was that it was not required to investigate reduction of any contract positions because none of them were full-time and permanent. Further, the document itself describes each of the contract positions; it refers to these as “fixed term”, “on an as needs basis”, or “of a limited duration”. The document is consistent with PKCT only considering full-time and permanent contract positions for redeployment purposes.

362    The appellants have not demonstrated that the primary judge fell into error in finding that PKCT breached cl 13.5.3 of the Agreement.

A finding not challenged

363    There is an aspect of the primary judge’s findings which has not been challenged by the appellants. His Honour accepted the evidence of Mr Giddings that two other positions at PKCT, namely Team Coordinator and Backup Coordinator, were advertised as vacant on 26 September 2014 and filled on 3 November 2014. His Honour found that Mr Giddings and Mr Rosewarn could have filled these positions. However, the proposal to abolish their positions was not announced until 2 December 2014. His Honour held that in this respect, PKCT had “failed to explore all avenues to avoid forced redundancies and it failed to comply with cl 13.5”. I understand his Honour to have decided that PKCT breached cl 13.5.3 by failing to investigate whether the affected employees could be redeployed to those positions.

364    Mr Green’s evidence was that he was considering the senior managers’ recommendation from 1 August 2014 to abolish Mr Giddings’ and Mr Rosewarn’s positions and decided to accept the recommendation in mid-October 2014. Even accepting that evidence, PKCT failed to explain why it did not investigate whether Mr Giddings and Mr Rosewarn could have filled the positions of Team Coordinator and Backup Coordinator. I respectfully agree with his Honour’s finding that such a failure was a breach of cl 13.5.3.

365    In summary, I consider that his Honour’s findings that PKCT breached cl 13.5 of the Agreement, and thereby breached s 50 of the Fair Work Act, should be upheld.

The findings that PKCT breached ss 340 and 346 of the Fair Work Act

366    The primary judge held that PKCT contravened ss 340 and 346 of the Fair Work Act by taking adverse action against Mr Giddings for reasons prohibited under those provisions.

367    Section 340 of the Fair Work Act provides, relevantly:

340 Protection

(1)    A person must not take adverse action against another person:

(a)    because the other person:

(i)    has a workplace right; or

(ii)    has, or has not, exercised a workplace right; or

(iii)    proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

…

368    The table in s 342(1)(a) shows that the dismissal of an employee by an employer constitutes “adverse action”.

369    Section 341(1)(a) defines “workplace right” as including a role or responsibility under a workplace law or workplace instrument. The Fair Work Act is a workplace law, and the Agreement is a workplace instrument.

370    Section 346 of the Fair Work Act provides:

346    Protection

A person must not take adverse action against another person because the other person:

(a)    is or is not, or was or was not, an officer or member of an industrial association; or

(b)    engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or

…

371    The Union is an “industrial association”, and Mr Giddings was at all relevant times an “officer” of the Union.

372    Section 347 of the Fair Work Act sets out the circumstances in which a person engages in “industrial activity”:

347    Meaning of engages in industrial activity

A person engages in industrial activity if the person:

(a)    becomes or does not become, or remains or ceases to be, an officer or member of an industrial association; or

(b)    does, or does not:

…

(ii)    organise or promote a lawful activity for, or on behalf of, an industrial association; or

(iii)    encourage, or participate in, a lawful activity organised or promoted by an industrial association; or

…

(v)    represent or advance the views, claims or interests of an industrial association; or

…

373    Sections 340 and 346 can be contravened even if a prohibited reason is not the sole reason for the adverse action. Section 360 provides:

360     Multiple reasons for action

For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

374    Importantly, where an employee alleges that an employer has taken adverse action against him or her for a prohibited reason, s 361 casts the onus on the employer to “prove otherwise”. Section 361 provides, relevantly:

Reasons for action to be presumed unless proved otherwise

(1)    If:

(a)    in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)    taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

375    In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [44] (“Barclay”), French CJ and Crennan J observed that the central question is as to why the adverse action was taken. The onus of proving that a prohibited reason was not an operative factor in taking adverse action must be discharged on the balance of probabilities in light of all the established evidence: Barclay at [62].

376    In Barclay, Gummow and Hayne JJ described the Court’s task at [127] as being:

…to assess whether the engagement of an employee in an industrial activity was a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.

377    Mr Giddings had held a number of Union or Union-related leadership positions, including as Lodge President from April 2000 and as an employee representative under the Agreement and its predecessor. The primary judge found that in those roles, he was centrally involved in a number of industrial disputes at the terminal. His Honour described Mr Giddings as a forceful and somewhat uncompromising advocate for the interests of the Union and its members. The respondents contended that as a result of Mr Giddings’ Union roles and his industrial activities, particularly his leading role in a 2012 dispute in support of a new enterprise agreement, Mr Green saw Mr Giddings as an impediment to workplace change. The respondents argued that Mr Green terminated Mr Giddings’ employment because, or partly because, of his exercise of workplace rights, roles with the Union and involvement in industrial activities. The primary judge used the expression “Union roles and/or industrial activities” to describe these prohibited reasons. I will adopt a similar phrase.

378    The termination decision was made by Mr Green. Mr Green deposed that his decision was not influenced by Mr Giddings’ Union roles or industrial activities. If the primary judge accepted this aspect of Mr Green’s evidence, PKCT would have discharged its onus under s 361(1) of the Fair Work Act.

379    However, his Honour decided that Mr Green’s evidence was generally unreliable. His Honour said:

444    I found Mr Green’s evidence unreliable and I need not reiterate my reasons for doing so. While his evidence was essentially corroborated by Mr Gorman and Mr Stewardson their evidence was similarly unreliable and, even taken together, their evidence carries little weight.

445    My view of the unreliability of Mr Green’s evidence, together with my rejection above of many of PKCT’s contentions, has led me to conclude that PKCT failed to discharge its onus to show that the substantial and operative reasons for its decisions to terminate Mr Giddings’ employment did not include Mr Giddings’ Union roles and/or industrial activities. I find that PKCT contravened ss 340 and 346 of the Act.

380    In the appeal, the appellants submit that his Honour made the following errors in finding that PKCT had contravened ss 340 and 346 of the Fair Work Act:

(1)    His Honour wrongly conflated s 360 of the Fair Work Act with the requirement in Barclay that the prohibited reason must be a substantial and operative reason for the adverse action.

(2)    There was no rational connection between his Honour’s findings that the evidence of the senior managers was unreliable and his conclusion that the termination of Mr Giddings’ employment was for reasons including his Union roles and/or industrial activities.

(3)    His Honour should not have found that the senior managers had concealed documents adverse to the appellants’ case by failing to advert to those documents in their affidavits when they were not confronted with that proposition in cross-examination.

381    I will deal with each of these arguments in turn.

Whether there was conflation of s 360 of the Fair Work Act and the test in Barclay

382    In their first argument, the appellants submit that his Honour’s conclusion reflects a conflation of s 360 of the Fair Work Act with the requirement in Barclay that the prohibited reason be a substantial and operative reason for the adverse action. In para [445], his Honour indicated that PKCT was required to prove that the substantial and operative reasons for the decision did not “include” Mr Giddings’ Union roles or industrial activities. The appellants submit that this demonstrates his Honour thought that it was enough to identify the substantial and operative reasons for the adverse action, and if part of one of those substantial and operative reasons was the Union roles or industrial activities, that was enough.

383    The contentious passage from his Honour’s reasons cannot be read in that way. Earlier, his Honour had set out the passage from the judgment of Gummow and Hayne JJ in Barclay at [127]. His Honour understood that a prohibited factor had to be a substantial and operative factor to constitute a reason, potentially amongst many reasons, for the taking of the adverse action. His Honour’s use of the word “include” in [445] of the reasons reflects the view that his Honour correctly took that Mr Giddings’ Union roles or industrial activities need not be the only substantial and operative factor for there to be a breach of ss 340 and  346 of the Fair Work Act. His Honour also understood that there was an onus on the appellants to prove that the Union roles or industrial activities were not a substantial and operative factor for the taking of the adverse action. His Honour decided that the appellants had not discharged that onus. In my opinion, his Honour correctly understood the legal principles and correctly applied those principles.

Whether there is a rational connection between the findings that evidence was unreliable and the findings that ss 340 and 346 of the Fair Work Act were contravened

384    The appellants’ next submission is that there was no rational connection between the findings his Honour made as to the unreliability of the evidence of the senior managers and the conclusion that PKCT had not discharged the onus imposed on it under s 361(1) of the Fair Work Act. The appellants argue that his Honour’s findings of unreliability were concerned with matters peripheral to the ultimate question as to the reasons why Mr Green decided to terminate Mr Giddings’ employment. For example, his Honour made findings adverse to the credit of Mr Green concerning the date when he decided to accept the senior managers’ recommendations to abolish the relevant positions. The appellants point out that, on the other hand, his Honour had accepted substantial parts of Mr Green’s evidence and, in particular, he held that in considering the redundancies, PKCT was engaged in a bona fide attempt to reduce its costs. The appellants submit that in the circumstances it was not rational for his Honour to transpose his findings as to credit on peripheral issues to an adverse finding as to credit on the ultimate issue.

385    The primary judge was engaged in an exercise of attempting to identify the substantial and operative reasons for PKCT’s decision to terminate Mr Giddings’ employment. His Honour was required to consider whether those reasons included Mr Giddings’ Union roles or industrial activities. More particularly, his Honour was required to decide whether PKCT had discharged its onus of proving that Mr Giddings’ Union roles or industrial activities were not amongst those reasons.

386    As Mr Green gave direct evidence that Mr Giddings’ Union roles or industrial activities formed no part of the reasons for his decision to terminate Mr Giddings’ employment, it was necessary for his Honour to decide whether that aspect of Mr Green’s evidence should be accepted. In so deciding, his Honour was not confined to considering whether Mr Green’s immediate or direct evidence as to the reasons for his decision was reliable or unreliable. His Honour was entitled to look at the reliability or unreliability of more peripheral aspects of his evidence. The unreliability of such more peripheral aspects led his Honour to the view that Mr Green’s immediate or direct evidence as to his reasons for the termination was also unreliable. That was a conventional method of reasoning. There was no requirement for his Honour to point to some direct inconsistency or other direct indication of unreliability in Mr Green’s evidence as to his reasons for the termination. There was no error in his Honour’s approach.

Whether there was error in the findings that the senior managers’ evidence was unreliable because they failed to disclose documents

387    The appellants’ next argument concerns his Honour’s findings that the evidence of Mr Green and the other managers was unreliable because they had failed to disclose particular documents in their affidavits. His Honour said:

[16]    …I found Mr Green’s evidence, and that of the senior managers, quite unreliable. They each failed to disclose important documents and parts of the decision-making process in their evidence in chief, and their evidence was implausible in light of the contemporaneous documents, other evidence which I prefer, and the surrounding circumstances. I give their evidence little or no weight.

388    Later, his Honour said:

[144]    In their affidavits Mr Stewardson, Mr Gorman and Mr Green each purported to present a comprehensive account of the development of the proposal to abolish positions and terminate the employment of the affected employees. In cross-examination each of them confirmed that this was so. However, each of their carefully constructed affidavits disguised rather than illuminated the decision-making process. Amongst other things, it became clear in cross-examination that each of them had not disclosed important documents and decisions, omitting matters which were contrary to the thrust of PKCT’s case. In my view each of them did so deliberately.

389    The “parts of the decision-making process” which his Honour found were not disclosed were principally an initial view taken by the managers that PKCT was required to offer voluntary redundancies in respect of each of the potentially redundant positions and to consider reducing contractors generally, rather than only permanent and full-time contractors. That view appeared in documents which his Honour held had been deliberately not disclosed. It is convenient to refer only to the non-disclosure of documents in the discussion that follows.

390    The appellants submit that if his Honour was to make a finding that Mr Green, Mr Gorman and Mr Stewardson had deliberately omitted to disclose documents because they were adverse to the appellants’ case, it was necessary that the requirements set out in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at [67] be complied with. In that case, Heydon, Crennan and Bell JJ said:

It is not sound judicial technique to criticise a party-witness for deliberately withholding the truth in a fashion crucial to a dismissal of that party’s claim unless two conditions are satisfied. First, reasons must be given for concluding that the truth has been deliberately withheld. Secondly, the party-witness must have been given an opportunity to deal with the criticism.

391    The appellants submit that Mr Green, Mr Gorman and Mr Stewardson were not given an opportunity to deal with the allegation that they had concealed documents because their disclosure would have been adverse to PKCT’s case.

392    The documents which his Honour held that PKCT’s witnesses had failed to disclose in their evidence in chief (which almost entirely consisted of the adoption of their affidavits) included four reports produced by Mr Gorman, each entitled “FY15 PKCT Operations Organisational Review” (“the OOR reports”). The OOR reports were not referred to in or annexed to the affidavits of Mr Green, Mr Gorman or Mr Stewardson. The first OOR report was produced shortly after 2 July 2014 and was sequentially amended to produce the second, third and fourth OOR reports.

393    His Honour considered that the OOR reports contained material adverse to the appellants’ case. His Honour interpreted the first OOR report as being prepared on the basis that PKCT was required to redeploy the affected employees through offers of voluntary redundancies and by reducing contractors. The second OOR Report indicated that there were to be no offers of voluntary redundancy in respect of Mr Giddings’ and Mr Rosewarn’s positions and that they would not be redeployed into contract positions because there were no contractors engaged on a permanent basis. The third OOR report, which his Honour held was produced at about the end of July 2014, showed that the proposal to make the positions redundant was essentially complete when the report was produced. The fourth OOR report, produced on about 16 October 2014, showed very little change in the proposal since the third OOR report. Those matters assisted his Honour to conclude that Mr Green made his decision to accept the managers’ recommendations on or shortly after 1 August 2014.

394    In addition, his Honour held that the managers had failed to disclose a Scenario Planner prepared by Mr Gorman in June 2014 which tended to show that there were positions suitable for Mr Giddings and Mr Rosewarn to be redeployed into if such positions became vacant through offers of voluntary redundancy, and that there were suitable contract roles for Mr Giddings and Mr Rosewarn to be redeployed into. His Honour considered that this document was adverse to the thrust of PKCT’s case both because it showed that the managers had initially taken a different view and because it was inconsistent with Mr Green’s evidence that Mr Giddings did not have suitable skills and competencies to perform other roles within PKCT.

395    His Honour also noted that the managers had failed to disclose an “Operational Review – May 2014” presentation prepared by Ms Ragen and a revised organisational chart prepared by Mr Gorman in about July 2014.

396    The primary judge concluded that Mr Green, Mr Gorman and Mr Stewardson deliberately omitted important documents from their affidavits because those documents referred to matters contrary to the thrust of PKCT’s case. The appellants submit that the approach in Kuhl at [67] required that the witnesses be given an opportunity to deal with that criticism before that finding was made.

397    The respondents submit that the passage in Kuhl at [67] does not apply here because in that case the trial judge had found there were serious omissions from the plaintiff’s evidence and treated those omissions as a form of admission, whereas the omissions in this case were relevant only as to credit. The respondents also submit that the appellants’ submissions are based on the mistaken premise that his Honour found that the managers had “concealed” material, when his Honour’s finding was in fact that they had “not disclosed” important documents.

398    The primary judge found, not merely that the managers had failed to disclose important documents in their evidence in chief, but that they had done so deliberately because the documents were contrary to the thrust of PKCT’s case. A witness is not ordinarily under any obligation to refer to or annex any particular documents in evidence in chief, whether given orally or by way of affidavit. The position is different where a witness’ failure to do so makes his or her evidence misleading. His Honour considered that the managers were under an obligation to disclose the documents because their affidavits implied that their evidence provided a comprehensive account of relevant events, and because they confirmed in cross-examination that this was so. His Honour found, in effect, that the managers had acted in a way that was misleading and dishonest by failing to disclose the documents.

399    The second condition described in Kuhl at [67] reflects an application of Browne v Dunn (1893) 6 R 67. In Kuhl, Heydon, Crennan and Bell JJ at [71] set out the following passage from the judgment of Lord Herschell in Browne v Dunn at 70-71:

[I]t seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.

(Emphasis added.)

400    In my opinion, the primary judge’s finding to the effect that the witnesses had been dishonest by failing to disclose the documents comes squarely within Browne v Dunn. Further, there is no substance in the distinction sought to be drawn by the respondents between a finding that a witness has concealed documents and a finding that a witness has deliberately failed to disclose documents. They amount to the same thing.

401    The issue that must be decided is whether the witnesses were given an opportunity to deal with the allegation that they had failed to disclose the relevant documents in their affidavits because their disclosure would have been adverse to PKCT’s case.

402    At this stage, it is necessary to say something about the relevance of the credit of Mr Green, Mr Gorman and Mr Stewardson. Mr Green’s evidence was that he did not accept the recommendations of the senior managers that PKCT should make the positions redundant and not to offer voluntary redundancies until mid-October 2014. His evidence was also to the effect that he did not decide to consider reduction of only full-time and permanent contract positions until 10 December 2014. His Honour took the view that Mr Gorman and Mr Stewardson corroborated that evidence (although I consider that they did so only to a limited extent, as I will discuss later). His Honour found that Mr Green had made the decision to accept the senior managers’ recommendations on or shortly after 1 August 2014, rejecting the evidence to the contrary of all three witnesses.

403    Mr Green also gave evidence that Mr Giddings’ Union roles and industrial activities formed no part of the reasons for his decision to abolish Mr Giddings’ position. That decision was made by Mr Green alone, and Mr Gorman and Mr Stewardson could not, and did not purport to, corroborate Mr Green’s evidence as to the reasons for his decision. Therefore, on the question of whether the prohibited reasons were among Mr Green’s reasons for his decision, the question for the primary judge was as to the reliability of Mr Green’s evidence. Insofar as it concerns the findings of contraventions of ss 340 and 346 of the Fair Work Act, the focus of the appeal must be on the evidence of Mr Green.

404    The respondents contend that Mr Green was given an opportunity in cross-examination to answer the allegation that he had deliberately failed to disclose the relevant documents in his affidavit because it was contrary to the thrust of PKCT’s case and that in doing so he acted dishonestly. They rely on two passages of the cross-examination.

405    The first passage consists of the following questions and answers:

So you don’t refer anywhere to – first of all, you don’t refer anywhere to seeing the document which is part of exhibit A5 in July 2014? --- No, I don’t.

And that’s because you wanted to create the impression that your involvements occurred later in the second half of 2014? --- No.

406    Exhibit A5 in the proceeding at first instance consisted of the first, second and third OOR reports. The first question in the passage asked whether Mr Green had referred in his affidavit to “seeing the document…in July 2014” (it is not clear whether the document the cross-examiner was referring to was the first, second or third OOR report) and he answered that he had not. Then, Mr Green was asked whether that was because he wanted to create the impression that his “involvements” (presumably the cross-examiner was referring to his involvement in the process leading to the decision to abolish the positions) occurred later in the second half of 2014. The questions related solely to the timing of Mr Green’s “involvements”.

407    The primary judge found that the third OOR report showed that the proposal to make the positions redundant was essentially complete by the end of July 2014. The second question in effect asserted that Mr Green had “involvements” in the first half of 2014 (ie up to the end of June 2014) and was seeking to hide such “involvements”. The question did not relate to the critical time, July 2014. Further, the proposition that Mr Green wished to hide the third OOR report because the proposal was essentially complete by the end of July 2014 was not put to him. In my opinion, this imprecise passage of cross-examination did not adequately alert Mr Green to the allegation that he had deliberately failed to disclose the OOR reports in his affidavit because their disclosure would have been adverse to the thrust of PKCT’s case.

408    The second passage of cross-examination relied on by the respondents is as follows:

And in these proceedings the evidence advanced by you has been aimed at disguising the true nature of the process followed leading to those – Mr Giddings’ termination? --- I don’t agree with that.

You saw the restructure as an opportunity to get rid of Mr Giddings? --- I saw the restructure as an opportunity to reduce costs.

409    These questions did not alert Mr Green to any allegation that he failed to disclose the OOR reports because they were contrary to the thrust of PKCT’s case. It is true that he was cross-examined in other passages about the documents themselves. For example, he was asked why he had not “put” the third OOR report in this affidavit. However, that is quite different to an allegation that he had deliberately not referred to the document because it was contrary to the thrust of PKCT’s case, and that he had acted dishonestly in doing so.

410    Mr Green was not cross-examined about his non-disclosure of the Scenario Planner. Further, although Mr Green was asked whether he had set out the full extent of his involvement in the process leading to the redundancies, he was not cross-examined about whether he had sought to give the impression that his affidavit comprehensively disclosed all relevant documents.

411    In these circumstances, the requirements of Browne v Dunn and Kuhl were not complied with. In my respectful opinion, the primary judge should not have found that Mr Green’s evidence was unreliable on the basis that he had deliberately failed to disclose important documents and had acted dishonestly in doing so.

412    I have reached the same conclusion about his Honour’s findings that Mr Gorman and Mr Stewardson deliberately failed to disclose documents. It is apparent that the requirements of Browne v Dunn and Kuhl were not complied with in relation to their evidence. In light of my finding concerning Mr Green, it is unnecessary to discuss my reasons for so finding in respect of Mr Gorman and Mr Stewardson in any detail.

Whether any substantial miscarriage of justice has occurred

413    The non-disclosure of documents was not the only basis upon which the primary judge found that the witnesses’ evidence was unreliable. His Honour also found that some aspects of their evidence were implausible in light of contemporaneous documents, other evidence and the surrounding circumstances.

414    Section 28(1) of the Federal Court of Australia Act 1976 (Cth) provides, relevantly:

28    Form of judgment on appeal

(1)    Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction:

(a)    affirm, reverse or vary the judgment appealed from;

(b)    give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order;

(c)    set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit;

…

(f)    grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it is appropriate to grant a new trial; or

…

415    In Conway v R (2002) 209 CLR 203, the High Court dealt with s 28(1)(f) of the Federal Court of Australia Act. The appellant had been convicted of murder. The trial judge had directed the jury that it would be dangerous to convict the appellant unless the evidence of two witnesses was corroborated. The trial judge informed the jury that there were 18 matters capable of constituting such corroboration. The appellate court considered that four of these matters were not capable of constituting corroboration, so that the jury had been misdirected. However, the appellate court dismissed the appeal and the High Court upheld that dismissal, on the basis that there had been no substantial miscarriage of justice.

416    The High Court considered the appropriate construction of s 28(1)(f) of the Federal Court of Australia Act. The plurality (Gaudron A-CJ, McHugh, Hayne and Callinan JJ) held:

6    To construe s 28(1)(f) as authorising the dismissal of appeal on the basis that no substantial miscarriage of justice has actually occurred gives effect to the long established rule of the common law that a new trial is not ordered where an error of law, fact, misdirection or other wrong has not resulted in any miscarriage of justice…

…

29     [I]t seems clear enough that at common law a new trial would not be ordered in a civil cause if the error – whatever it was – could not reasonably be supposed to have affected the result of the trial…

…

36    ...This power is expressed in wide terms and should be given a liberal construction. It is a power that must, of course, be exercised judicially. But there is nothing unjudicial, arbitrary or capricious in refusing to order a new trial when, although error has occurred, no miscarriage of justice has occurred.

…

38    In Chamberlain [No 2], Gibbs CJ and Mason J said “the power of the Federal Court, unfettered in terms as it is, was intended to extend at least as widely as those of the State Courts of Criminal Appeal, and thus to enable the Federal Court to set aside a verdict whenever it is of opinion that there has been a miscarriage of justice”. Their Honours did not refer to the proviso in the common-form criminal appeal statute. But their remarks are consistent with the Federal Court having the power to dismiss an appeal on the ground that an identifiable error in the proceedings did not affect the result of the proceedings…

(Citations omitted.)

417    In Windoval Pty Ltd v Donnelly (2014) 226 FCR 89, a Full Court of the Federal Court (Jacobson, White and Gleeson JJ) held that the primary judge had overlooked certain evidence, but declined to order a new trial. Their Honours said:

95    Conway and Chamberlain were both criminal cases but it is plain that the construction of s 28(1)(f) given by their Honours applies equally to civil cases heard without a jury. Indeed, it would be extraordinary if it were otherwise since s 28(1)(f) is concerned with the power to grant a new trial in any case in which there has been a trial “either with or without a jury”.

96    There is no definition of “trial” in the Federal Court Act but it is defined in Sch 1 to the Federal Court Rules 2011 (Cth) to include any hearing other than an interlocutory hearing. It is clear that this is the sense in which the term “trial” is used in s 28(1)(f) of the Act. At the risk of stating the obvious, this reinforces the construction of s 28(1)(f) given in Conway and makes it plain that the “no miscarriage of justice” exception applies to civil trials heard by a judge without a jury.

(Citations omitted.)

418    Guidance may be obtained from the cases concerning the common-form proviso which governs appeals against convictions by a jury in a criminal trial as to how the appellate court determines whether a substantial miscarriage of justice has occurred. In Weiss v R (2005) 224 CLR 300, the High Court said:

39    Three fundamental propositions must not be obscured. First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt.

…

41    That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the “natural limitations” that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty…But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself.

42     It is neither right nor useful to attempt to lay down absolute rules or singular tests that are to be applied by an appellate court where it examines the record for itself, beyond the three fundamental propositions mentioned earlier…

43    There are, however, some matters to which particular attention should be drawn. First, the appellate court’s task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict. The court is not “to speculate upon probable reconviction and decide according to how the speculation comes out”. But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court’s assessment of the whole record of trial. Secondly, it is necessary always to keep two matters at the forefront of consideration: the accusatorial character of criminal trials such as the present and that the standard of proof is beyond reasonable doubt.

44    Next, the permissive language of the proviso (“the Court…may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal…”) is important. So, too, is the way in which the condition for the exercise of that power is expressed (“if it considers that no substantial miscarriage of justice has actually occurred”). No single universally applicable description of what constitutes “no substantial miscarriage of justice” can be given. But one negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty.

(Citations omitted.)

419    These propositions can be adapted to an appeal from a judgment in a civil case heard without a jury. The appellate court must decide for itself whether there has been a substantial miscarriage of justice on its own assessment of the evidence before the trial judge. It is not usually the task of the appellate court to decide whether the primary judge would have reached the same decision if he or she had not made the error identified in the appeal. Section 140(1) of the Evidence Act 1995 (Cth) prescribes that the standard of proof is the balance of probabilities, but it is necessary to take into account the matters in s 140(2), which reflect Dixon J’s judgment in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363. It is also necessary to bear in mind that under s 360 of the Fair Work Act the respondent to the proceeding carries the onus of proving that it did not take the adverse action for any prohibited reason.

The unreliability of Mr Green’s evidence

420    Apart from relying on Mr Green’s failure to disclose documents, the primary judge found that significant parts of Mr Green’s evidence were implausible in light of the contemporaneous documents, other evidence and the surrounding circumstances. Those matters form an appropriate starting point for my own assessment.

421    I do not agree with all of his Honour’s conclusions as to the unreliability of Mr Green’s evidence, but where I concur I will identify the relevant evidence and indicate why I concur that the evidence is unreliable:

    Mr Green deposed that he did not decide to proceed with the proposed abolition of the positions until mid-October 2014. He also gave oral evidence that he did not decide that voluntary redundancies would not be offered in relation to Mr Giddings’ and Mr Rosewarn’s positions until mid-October 2014. His Honour found that this evidence was implausible, holding that Mr Green made these decisions on or shortly after 1 August 2014. I agree with his Honour for the following reasons:

(a)    The sequence of OOR reports shows that the senior managers’ recommendations were effectively in final form from late July 2014. The senior managers made their recommendations to Mr Green at a meeting on 1 August 2014. The fourth OOR report shows that, apart from some date changes, the proposal was no different in substance from the third OOR report prepared in July 2014 (nor was it different in substance from the second OOR report). It is implausible that Mr Green would procrastinate over these important issues for some 2½ months between 1 August and mid-October 2014. The only explanations Mr Green offered as to why he took such a long time to decide were that he was busy and that he may have been contemplating further redundancies. Those explanations are not supported by other evidence and are implausible.

(b)    There is not a single contemporaneous document which shows that Mr Green queried the senior managers’ recommendations, or was contemplating taking a different course from that which was recommended to him, or was otherwise still giving these important issues his consideration after 1 August 2014. It is implausible that if Mr Green was still considering these issues, there would not be any contemporaneous documents supporting that fact.

(c)    Mr Green deposed that he had meetings with the senior managers between 1 August 2014 and 18 November 2014 which involved discussing “final recommendations”. That evidence is implausible because there is no evidence of any material further or “final” recommendations and there were no material changes to the recommendations after 1 August 2014.

(d)    Mr Green’s evidence that a meeting with the managers held on 29 October 2014 was “to discuss various amendments to and refinements to the initial proposals” is implausible because a collection of documents prepared for the meeting shows that the meeting was about the execution of the redundancies rather than refinements of the proposal.

(e)    The later contemporaneous documents tend to show fine tuning or finessing of a plan already made with the taking of steps to implement a decision already made. For example, documents attached to an email sent by Ms Ragen on 23 October 2014, including a Detailed Execution Timeline and Calendar and template letters to employees who would be made redundant, point towards the decision to abolish the positions of Mr Giddings, Mr Rosewarn and one Administration Assistant having already been made. Mr Gorman deposed that throughout August and September 2014 he developed a consultation plan to assist with the proposed consultation with the Union. It is improbable that he would have gone to that trouble if he did not know that Mr Green had accepted the recommendations.

    Mr Green was prepared to make a false statement at a consultation meeting with the Union on 10 December 2014 and to mislead the Union. Mr Green said words to the effect:

…I am not fully au fait with the implications and applications of what has been said. It has given me food for thought. I will see that a decision will be made by tomorrow.

Under cross-examination, Mr Green conceded that before the meeting he had already decided to terminate the employment of the three employees, and that he was not prepared to alter that position. Therefore, his statement that a decision would be made by the next day was false.

    Mr Green gave evidence that on 10 December 2014 he had a meeting with the senior managers at which they discussed means by which Mr Giddings’ and Mr Rosewarn’s forced redundancies might be avoided. It is implausible that the managers had such a discussion about means of avoiding forced redundancies when Mr Green conceded in cross-examination that his mind was made up on the morning before that meeting.

    His Honour considered that Mr Green was exact in his recollection as to dates of some relevant events, but when it did not suit him, he offered only a broad range of dates for a particular event or occurrence. His Honour did not accept that Mr Green’s recollection was so limited and considered that in some of the instances he was prevaricating. For example:

(a)    Although Mr Green deposed that he decided to accept the senior managers’ recommendations to abolish the three positions in mid-October 2014, under cross-examination he said that the date might have been around 29 October or early November 2014. Such uncertainty about the date of his decision is implausible when the proposal to abolish the positions involved a great deal of managerial planning and was executed with precision. Further, Mr Green was served with the proceedings in late December 2014 and swore his affidavit in February 2015, so it is unlikely that his memory was so impaired by the effluxion of time that he could not accurately recollect when he made that important decision.

(b)    Mr Gorman gave evidence that in late June 2014 he advised Mr Green that voluntary redundancies should not be offered in relation to the positions of Mr Giddings and Mr Rosewarn because that would reduce costs savings. His Honour accepted this evidence. Mr Green’s evidence was that he could not remember discussing that issue with Mr Gorman in late June 2014. It is implausible that Mr Green could have forgotten discussing that important question with Mr Gorman.

I concur with his Honour’s analysis of these matters.

    Mr Green’s evidence was to the effect that it was not until 10 December 2014 that he decided that PKCT’s consideration of reducing contractors would be limited to contractors engaged on a full-time and permanent basis. His Honour held that this evidence was implausible. I agree because:

(a)    Again, the sequence of OOR reports shows that the senior managers’ recommendations were effectively in final form from late July 2014, including the recommendation that consideration be restricted to permanent contracts. It is implausible that Mr Green would not have made a decision about this important matter until over four months after the 1 August 2014 meeting.

(b)    Mr Gorman gave evidence that the recommendation to limit the consideration of reducing contractors resulted from legal advice authorised by Mr Green in June 2014. His Honour inferred that the advice must have been received in about July 2014. In view of that advice, it is likely that Mr Green made up his mind around that time rather than months later on 10 December 2014. Mr Gorman operated on the assumption that he only needed to consider full-time and permanent contract positions. That tends to show that he understood that Mr Green had already decided to limit PKCT’s consideration of contract work.

(c)    Unless the managers knew that Mr Green took the same view as they did, it is likely that between 1 August and 10 December 2014, the senior managers would have sought some clarity on this issue from Mr Green. PKCT did not produce any evidence or a single contemporaneous document which showed that they sought such clarity.

(d)    Mr Green must have known that restricting PKCT’s consideration of reducing contractors to the point where there were no contractors to be considered, in combination with his decision not to offer voluntary redundancies, meant that it was inevitable that the positions of Mr Giddings and Mr Rosewarn would be terminated. It is inherently unlikely that Mr Green would have deferred the important decision as to whether redeployment was open until the very day when he decided to abolish their positions. It is much more likely that he decided the issue earlier.

    PKCT engaged in consultation with the Union from 2 December 2014 to 10 December 2014. That consultation was led by Mr Green. His Honour found that the consultation was not genuine. I agree with his Honour’s reasoning. The matters which indicate that PKCT’s consultation was not genuine are:

(a)    The appearance of consultation during the meeting with the Union on 10 December 2014 was a pretence given that Mr Green conceded that he had already made the decision to terminate Mr Giddings’ and Mr Rosewarn’s employment and there was no possibility that he would alter or reverse the decision.

(b)    Mr Green refused to provide any substantive information to the Union about contractors or the work they undertook.

(c)    On 3 December 2014, Ms Amy Linton (who had replaced Ms Ragen while she was on maternity leave) prepared a detailed rebuttal not only of concerns that the Union had raised at the initial consultation meeting, but of every other argument she anticipated might be raised. That document was provided to Mr Green and the other senior managers. Mr Green then used these rebuttal arguments in subsequent consultation meetings. This conduct is inconsistent with genuine consultation.

(d)    Mr Green sought to rely on a calculation which he had requested showing that three long serving employees each taking a voluntary redundancy would cost PKCT about $100,000 more than the forced redundancies of Mr Giddings, Mr Rosewarn and one Administration Assistant. However that comparative calculation was skewed because Ms Arber had less than 10 years’ service, the three long serving employees used as a comparator did not include an Administration Assistant, whose wages could be expected to be lower, and the comparison assumed that PKCT would have allowed three of its longest serving employees to accept the voluntary redundancies. It must have been apparent to Mr Green that the calculation was of limited value. His reliance on it points to a determination to justify his position rather than genuinely considering alternative views.

(e)    Mr Green allowed the Union only nine days for consultation when, on his account (or, at least, one of his accounts), he had decided to accept the recommendation to abolish the positions six weeks before in mid-October 2014. PKCT gave the Union no advance warning of the proposal. The time for consultation was inadequate, particularly in view of the importance of the decision for at least Mr Giddings, Mr Rosewarn and Ms Arber and difficult questions concerning the construction of cll 7, 9 and 13.5 of the Agreement.

    Mr Green denied any antipathy towards Mr Giddings. His Honour considered that this evidence was implausible. I agree with his Honour’s assessment because:

(a)    In a briefing paper to PKCT’s directors dated 17 November 2011 concerning the negotiation of the enterprise agreement, Mr Green wrote that “employee representatives have conducted their discussions on the basis of conceding nothing” and “A sense of arrogance is conveyed”. To describe Mr Giddings and the other employee representatives as displaying a sense of arrogance conveys frustration with, and antipathy towards, them.

(b)    As the industrial dispute intensified from that point onwards, Mr Green’s frustration and antipathy towards Mr Giddings could only have increased. Mr Giddings was the leader of a campaign in which the employees took 186 hours of consecutive work stoppages over a three week period in February 2012.

(c)    Mr Green’s denial that he thought that the Union had too much influence on the site was implausible. PKCT’s protocol for the enterprise agreement negotiations included the “key goal” that employees come to look to PKCT as their future rather than to the Union.

(d)    Industrial issues continued and in 2014, Mr Green was still seeking changes to the “team system” in order to freeze the annual pay rises and suspend the regrading of positions provided for under the Agreement. Mr Giddings was influential in the Union’s decision to reject the proposed variation.

    Mr Green sought to justify his decision to not redeploy Mr Giddings and Mr Rosewarn on the basis that they did not have suitable skills and competencies to perform other positions within PKCT. In cross-examination, Mr Green was unable to identify any plausible reason why Mr Giddings did not have suitable skills to work in the Inbound Planner, Outbound Planner or Site Services Planner positions (collectively “Area Planners”), other than that he needed a two day training course and that he had no experience in the roles. Mr Giddings had performed the bulk of the duties of the Area Planner roles for six years between 2000 and 2006, and had then worked as a Maintenance Planner from 2006 to 2013. His core responsibilities as Long Term Planner included mentoring and coaching the Area Planners and providing periodic relief in those positions. I concur with his Honour’s view as to the implausibility of this aspect of Mr Green’s evidence.

The unreliability of Mr Gorman’s and Mr Stewardson’s evidence

422    The primary judge took the view that Mr Green’s evidence, that he had not decided to accept the senior managers’ recommendations to make the positions redundant and to not offer voluntary redundancies until mid-October 2104 and to not reduce contractors until 10 December 2014, was corroborated by Mr Gorman and Mr Stewardson. The primary judge found Mr Gorman’s and Mr Stewardson’s evidence to be unreliable not only because of their failure to disclose documents, but also for other reasons.

423    I consider that Mr Gorman’s evidence only offered limited corroboration of Mr Green’s evidence. Mr Gorman’s affidavit evidence as to what happened at the meeting on 1 August 2014 and in the two months after that was scant. He said only that there were further meetings to discuss the “progression of the…Operational Review”, where the topics discussed included “final recommendations”, and that throughout August and September 2014 he began developing a plan for consultation with the Union. He did not say when it was that Mr Green told him that he had decided to accept the managers’ recommendations. However, under cross-examination he said that Mr Green accepted the proposal to abolish the two positions around 24 October 2014. He gave no evidence as to when Mr Green accepted the recommendations not to offer voluntary redundancies and not to reduce contractors.

424    Mr Stewardson deposed that at the meeting on 1 August 2014, Mr Green said:

If you are confident that the Engineering Team positions can be made redundant with minimal interruption to the businesses then I think we should proceed. However, we will need to conduct a consultation process and to thoroughly consider how to manage the risks of implementation.

425    That passage is consistent with Mr Green having made a decision to accept the recommendation that Mr Giddings’ and Mr Rosewarn’s positions be made redundant. Later Mr Stewardson deposed:

Around mid-October 2014, I was informed by Mr Green, that he had made the decision to proceed with consultation with the CFMEU regarding the proposal to remove the FME and LTP roles.

426    That passage suggests only that Mr Green decided to proceed with consultation, not that he had made up his mind in mid-October 2014 to accept the senior managers’ recommendation to make Mr Giddings’ and Mr Rosewarn’s positions redundant. In my opinion, Mr Stewardson’s evidence does not corroborate Mr Green’s evidence that he did not decide to not offer voluntary redundancies until mid-October 2014 and that he did not decide not to reduce contractors until 10 December 2014. In fact, in cross-examination Mr Gorman accepted that from July 2014 onwards the company took the view that it would only consider redeployment to work done by contractors where the roles filled by contractors were full-time and permanent.

427    To the extent that Mr Gorman and Mr Stewardson corroborate the controversial parts of Mr Green’s evidence, I consider that their evidence should be rejected, even leaving aside any question of non-disclosure of documents. A number of the matters relevant to the credibility of Mr Gorman’s and Mr Stewardson’s evidence have already been addressed in the context of considering Mr Green’s evidence. For example, the implausibility of Mr Green taking some 2½ months to decide whether to abolish the positions is relevant to the assessment of Mr Gorman’s and Mr Stewardson’s evidence. I do not propose to repeat such matters, but will deal with other issues found by the primary judge to affect the credibility of their evidence. Again, I do not agree with all aspects of his Honour’s assessment, but will set out those aspects I concur with.

428    As to Mr Stewardson’s evidence:

    The primary judge found that Mr Stewardson had attempted to give the impression in his affidavit that the proposal to abolish the positions was developed later than when it was actually developed. I agree with that conclusion for the following reasons:

(a)    Mr Stewardson deposed that following a managers’ meeting on 2 May 2014, he agreed to “go away and review my team’s functions with a view to determining if there were any opportunities to consolidate or reduce roles within my team”. That evidence is implausible as he had already reviewed the Engineering Team’s functions for that purpose and set out his view in a proposal he sent to Ms Ragen on 16 April 2014. In cross-examination, he sought to explain his evidence by saying that he did not consider the 16 April 2014 proposal to be a detailed one. That explanation is implausible because he then conceded that he had not subsequently prepared a more detailed proposal.

(b)    Mr Stewardson deposed that in June 2014, Mr Gorman gave him an amended proposed Organisation Chart and asked for his comments in relation to the positions proposed to be abolished. His evidence was implausible because Mr Stewardson had already provided Mr Gorman with his views in the 16 April 2014 proposal. Mr Stewardson conceded in cross-examination that the organisation charts that Mr Gorman gave him included those that Mr Stewardson had himself prepared.

    In a “Phase 2 background summary”, which Mr Stewardson prepared for a meeting with Mr Green on 17 July 2014, he wrote:

Our business systems (in particular our [Agreement]) create a culture of role protection first rather than business improvement. A culture so engrained (sic) that no consultative change management model will achieve cost reduction across an expedient time frame. Our change management process must revert to a “just do it” model, which then allows people to learn new approaches to “survive” in the new paradigm created.

His Honour considered that Mr Stewardson initially prevaricated as to what he meant in this passage, but then conceded that he thought the consultation process and the Agreement would not allow PKCT to make necessary workplace changes in a timely way. His prevarication was most likely an attempt to avoid disclosing his view because it was contrary to PKCT’s case that it provided genuine consultation. I agree with his Honour’s analysis.

    Mr Stewardson cut and pasted some text from his earlier Organisation Redesign Stage 2 document into his Phase 2 background summary, but left out the assumption that “VRs [are] to be offered and accepted based on the stream as per EA”. In cross-examination he said he did not include the assumptions because “they weren’t relevant to my discussion with Mr Green”. That explanation is implausible. The obligation to offer voluntary redundancies was an important matter, as Mr Stewardson conceded. His Honour considered that it was more likely that Mr Stewardson did not include his earlier assumption because he knew by then that Mr Green had decided that PKCT would not offer voluntary redundancies in relation to the Mr Giddings’ and Mr Rosewarn’s positions. I agree with his Honour’s analysis.

    In an Operational Review document, Mr Stewardson had prepared an Organisation Chart showing the names and positions of the people who would be left in the Engineering Team. Mr Giddings’ and Mr Rosewarn’s names were not on the list. Mr Stewardson had labelled the chart “Nirvana”. Initially, his explanation was that the word “Nirvana” was “to make myself feel good”. He then admitted that he did not want Mr Giddings in his team. Later he denied that he did not want Mr Giddings in his team. There was substantial inconsistency in his evidence.

429    As to Mr Gorman’s evidence:

    Mr Gorman gave evidence that he had investigated all avenues for the redeployment of Mr Giddings and Mr Rosewarn, but that there were no suitable positions within PKCT or in contract work. However, when he was asked whether in preparing the “PKCT Operational Review summary paper” in June 2014 he was concerned with avoiding forced redundancies, he eventually conceded that was not his objective at the time. The relevant passage of cross-examination is as follows:

Yes, but you didn’t regard it as one of your objectives in this process to avoid compulsory redundancies, did you?---Yes. No, yes, we – because we were asked to look at other options, but I was also asked to look at the option of redundancies.

You knew that you had an obligation under the agreement to consider other options, didn’t you?---Yes.

But it wasn’t one of your objectives in this process to avoid voluntary – compulsory redundancies, was it?---No.

I agree with his Honour that this was a significant concession.

    Mr Gorman gave evidence that through August and September 2014 he began to develop a “consultation plan” to assist in PKCT’s consultation with the Union. His Honour found that evidence to be improbable given that Mr Gorman had prepared a consultation plan and timetable for the first draft OOR report on 2 July 2014. His Honour considered that this evidence was an attempt to paint a picture of the proposal to abolish positions having been developed later than it actually was. I concur with his Honour’s analysis.

    Mr Gorman sent an email to Mr Green and the other managers on 9 December 2014 concerning the ongoing consultation process. The email stated:

…[P]erhaps the ‘decision’ on Thursday should be the ‘decision’ to nominate the time for the voluntary redundancy to close (perhaps by 9am Friday) with a view to finalising any redundancies from this group on Friday, within any formal letter of redundancy to be issued on Friday. For the potentially impacted employees that the Company does not take through a voluntary redundancy process (i.e. LTP and FME roles), the ‘decision’ on Thursday should be the ‘decision’ to make those potentially impacted employees redundant, with any formal letter of redundancy to be issued Thursday.

Mr Gorman’s evidence was that the repeated use of inverted commas around the word ‘decision’ was merely a reference to a specific decision concerning the abolition of the Long Term Planner and Facilities Maintenance Engineer positions, which was yet to be made. His Honour said that the email tends to show Mr Gorman’s appreciation of the legal significance of when PKCT could be said to have made the relevant decision to abolish the positions. His Honour found that it was likely that he put the word ‘decision’ in inverted commas because there were no real decision to be made, the decision having already been made. I agree with his Honour’s analysis.

    Mr Gorman deposed that in June 2014, he prepared the “PKCT Operational Review summary paper” in which he outlined his preliminary thoughts and proposals to save labour costs. In cross-examination, Mr Gorman said that he had prepared the document for his own purposes and did not give the document to anybody else. The document identified seven positions that could potentially be made redundant, but he gave evidence that he could not recall discussing with Mr Stewardson what positions would be abolished in the Engineering Team before he prepared that document. His Honour considered that it was unlikely that he would propose the abolition of positions in the Engineering Team without first discussing that with Mr Stewardson, the manager of the Engineering Team. I agree with his Honour’s analysis.

The absence of evidence from Ms Ragen

430    Ms Ragen was integrally involved in the process that led to Mr Green’s decisions, together with Mr Gorman and Mr Stewardson. While Mr Gorman and Mr Stewardson were called to give evidence, Ms Ragen was not called, despite the fact that she continued to be employed by PKCT. A Jones v Dunkel (1959) 101 CLR 298 inference should be drawn that Ms Ragen’s evidence would not have assisted PKCT’s case that Mr Green’s decisions to accept the recommendations to abolish the positions and not offer voluntary redundancies were not made until mid-October 2014. An inference should be drawn that her evidence would not have assisted PKCT’s case that Mr Green did not decide that no contract positions would be reduced until 10 December 2014. The absence of evidence from Ms Ragen allows an inference to be more readily drawn that Mr Green made these decisions on or shortly after 1 August 2014. In particular, Ms Ragen prepared the second and third OOR reports. There was a controversial issue as to when the third OOR report was created. His Honour found that it was created in late July 2014, and that assisted in the conclusion that Mr Green’s decisions were made on or shortly after 1 August 2014.

431    My assessment is that the evidence of Mr Green on the issues discussed above is not credible. I take the same view as to the evidence of Mr Gorman and Mr Stewardson. In these respects, I concur with the assessments of the primary judge.

The appellants’ arguments as to why ss 340 and 346 of the Fair Work Act were not contravened

432    Before the primary judge, PKCT made a number of submissions in support of its case that the substantial and operative reasons for the termination of Mr Giddings’ employment did not include his Union roles or industrial activities.

433    First, PKCT submitted that there were genuine business reasons for a decision to abolish Mr Giddings’ position. The primary judge accepted that submission. However, it did not answer the question of whether another substantial and operative reason for the termination of his employment was Mr Giddings’ Union roles or industrial activities.

434    Second, PKCT submitted that employee representatives other than Mr Giddings had similarly active roles and no adverse action had been taken against those representatives. While his Honour accepted this, he found that Mr Giddings was the most senior Union official at the terminal and the most effective. There is no challenge to this aspect of his Honour’s findings.

435    Third, PKCT pointed to the fact that notwithstanding Mr Giddings’ long history of active involvement in industrial activities at the terminal, there was no evidence of any adverse action previously having been taken against him. His Honour accepted that this was so. However, it was far from determinative.

436    Fourth, PKCT argued that since Mr Green had commenced as general manager in 2008, PKCT provided Mr Giddings with substantial further education through payment support for a master’s degree, promoted him to the highest grade under the Agreement, and treated him as integral and trusted in the job redesign process in 2013 (in which the Long Term Planner position was created). His Honour accepted this, and I accept that these are factors that weigh in favour of the appellants’ case. PKCT also pointed to evidence suggesting that Mr Green treated Mr Giddings with respect and attended his mother’s funeral. His Honour accepted that Mr Green took these steps, but said that they were equally consistent with Mr Green’s recognition of Mr Giddings’ influence at the terminal.

437    Fifth, PKCT argued that there was no rational basis to assert that the reasons for the termination of Mr Giddings’ employment included his Union roles or industrial activities as the Union had continued to have an active role in industrial issues at the terminal since the termination of Mr Giddings’ employment. His Honour was not satisfied that this was a significant matter as Mr Giddings was a particularly effective Union representative and there was likely to be some advantage for PKCT from his absence at the next round of enterprise agreement negotiations.

438    Sixth, PKCT contended that Mr Green gave evidence that there were no vacant positions within PKCT into which Mr Giddings could have been redeployed so as to avoid his forced redundancy. His Honour accepted that this was so as at 10 December 2014, but said that this was not determinative.

439    Seventh, PKCT contended that Mr Green gave clear and consistent evidence that the Agreement did not require offers of voluntary redundancy in relation to Mr Giddings’ position and that he did not have suitable skills and competencies to properly perform any other positions within PKCT. His Honour rejected both propositions.

440    I pause to note that while there were no vacant positions when Mr Giddings’ employment was terminated on 11 December 2014, PKCT could have sought to avoid Mr Giddings’ forced redundancy by redeploying Mr Giddings into the Team Coordinator or Backup Coordinator positions which became vacant on 26 September 2014. His Honour found that Mr Giddings was qualified for each of these positions. Even if PKCT’s view was that it was not obliged under the Agreement to redeploy him, it is surprising that it would not make that offer to an obviously capable employee of 34 years standing – it would have at least saved PKCT some of the substantial redundancy payment it was required to make. In his affidavit, Mr Green responded to Mr Giddings’ claim that he could have been redeployed into one of those positions only by saying that the positions were not available when he made his final decision on 10 December 2014. PKCT’s failure to offer Mr Giddings’ those positions when they became available in September 2014 is unexplained.

441    Eighth, PKCT argued that there were no contractors who were engaged on a full-time permanent basis and therefore there were no contract positions into which it was practical to place Mr Giddings. His Honour accepted that there were no full-time and permanent contractors but said it was somewhat beside the point. PKCT argued that Mr Green gave proper consideration to reducing contractors, but his Honour rejected that argument. His Honour also rejected the argument that Mr Giddings did not have suitable skills and competencies to properly undertake contract work.

442    Ninth, PKCT argued that the only basis upon which the Union asserted that Mr Green’s evidence should be disbelieved was that the evidence demonstrated Mr Giddings’ redundancy was a sham and part of an elaborate scheme to abolish Mr Giddings’ position and terminate his employment. His Honour did not accept that the Union’s case was so limited.

443    Tenth, PKCT noted that the Union’s case involved the proposition that Mr Green made his decision to terminate Mr Giddings’ employment in August 2014, and it argued that Mr Green’s contrary evidence about the timing of the decision should be accepted. As I have discussed, his Honour did not accept Mr Green’s evidence in that regard.

444    I am unable to see any error in his Honour’s assessment of the submissions made by PKCT. I concur with his Honour’s views.

Conclusion

445    PKCT carried the onus of proving that Mr Giddings’ Union roles or industrial activities were not a substantial or operative reason for the termination of Mr Giddings’ employment. Even leaving aside any question of any failure by Mr Green to disclose documents, as I discussed above, a number of aspects of Mr Green’s evidence were not credible. The consequence is that his evidence that Mr Giddings’ Union roles and industrial activities were not among the substantial and operative reasons for the termination of his employment cannot be accepted. PKCT has not discharged its onus of proof.

446    Even though the primary judge erred by concluding that Mr Green had deliberately failed to disclose documents because it would be contrary to the thrust of PKCT’s case, I am satisfied that the error has not resulted in a substantial miscarriage of justice. In my opinion, his Honour correctly held that PKCT contravened ss 340 and 346 of the Fair Work Act.

The finding of accessorial liability against Mr Green

447    The primary judge also held that Mr Green contravened ss 340 and 346 of the Fair Work Act because he was involved in PKCT’s contraventions of those provisions. Section 550 provides, relevantly:

550    Involvement in contravention treated in same way as actual contravention

(1)    A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

(2)    A person is involved in a contravention of a civil remedy provision if, and only if, the person:

…

(c)    has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

…

448    The primary judge correctly held that s 361 of the Fair Work Act did not apply to the allegations against Mr Green, and that the applicants (the present respondents) were required to prove that he was knowingly concerned in PKCT’s contraventions. The respondents were required to establish that Mr Green had knowledge of each essential element of the contravention: Yorke v Lucas (1985) 158 CLR 661 at 670 (Mason ACJ, Wilson, Deane and Dawson JJ). They were required to prove that Mr Giddings’ Union roles or industrial activities were among the substantial and operative reasons for Mr Green’s decision to terminate Mr Giddings’ employment. They were required to prove that matter in accordance with the Briginshaw standard.

449    It can be a very difficult task for an applicant to prove what was in the mind of the person alleged to have taken the adverse action. Indeed that is the rationale for the reversal of the onus of proof under s 361 of the Fair Work Act: see Barclay at [49]-[51], [76]-[77].

450    There was no direct evidence that Mr Giddings’ Union roles or industrial activities were among Mr Green’s reasons for terminating his employment. There was no admission of that matter by Mr Green and, in fact, he denied that his reasons included such prohibited reasons. Accordingly, the respondents were required to prove their case by inference from the evidence which pointed to such a conclusion.

451    His Honour considered that there were strong grounds to infer that Mr Green’s reasons for the decision to terminate Mr Giddings’ employment included his Union roles and industrial activities. His Honour’s reasons for so concluding are an appropriate starting point for my own assessment of the evidence. Those reasons may be summarised as follows:

(a)    Mr Green developed an antipathy towards Mr Giddings as a result of the 2012 industrial dispute and it is likely that Mr Green came to see Mr Giddings as a serious impediment to workplace changes which Mr Green thought were necessary. Mr Giddings’ continued resistance to what Mr Green saw as necessary workplace changes were likely to have fuelled Mr Green’s frustration and resentment.

(b)    Mr Giddings was influential in persuading employees to reject Mr Green’s proposal for a wage freeze and a 12 month suspension of the regrading of positions. Mr Green thought that the necessary costs savings would be easier to achieve if Mr Giddings was no longer employed by PKCT.

(c)    Mr Giddings treated Mr Green in ways that were likely to have added fuel to Mr Green’s frustration and resentment, including a lack of respect towards him at a meeting on 4 July 2014 and using an insulting nickname to describe Mr Green and telling Mr Green about that nickname on one occasion.

(d)    The evidence showed that Mr Green was determined not to allow Mr Giddings to be redeployed into other work within PKCT whether through offers of voluntary redundancy or by reducing contractors.

452    Added to these matters was his Honour’s conclusion that Mr Green’s evidence, including his denial that Mr Giddings’ Union roles and industrial activities played any part in this decision, was unreliable.

453    The respondents argue that Mr Green’s evidence was dishonest in a number of respects and amounts to an admission that his reasons for the termination included prohibited reasons: cf Kuhl at [64]. I do not accept this argument because the evidence that was not credible related to matters peripheral to the issue of Mr Green’s reasons. That lack of credibility affects the reliability of his denial that his reasons included prohibited reasons, but does not amount to an admission that he took into account prohibited reasons.

454    The evidence does demonstrate that Mr Green had some antipathy towards Mr Green. This was because of Mr Giddings’ vigorous and forceful advocacy which, at least in part, had resulted in an enterprise agreement that PKCT was not satisfied with. It also resulted from his resistance to what Mr Green saw as necessary workplace changes in a deteriorating economic climate. These matters provided a motivation for Mr Green to bring about the termination of Mr Giddings’ employment.

455    Mr Green’s motivation to terminate Mr Giddings’ employment because of his Union roles and industrial activities was not enough to allow an inference to be drawn that the reasons for Mr Giddings’ termination included those Union roles and activities. Something more was needed. The primary judge considered that this additional factor was Mr Green’s determination to not allow Mr Giddings to be redeployed to other work within PKCT. His Honour said:

465    Fifth, the evidence tends to show that Mr Green was determined not to allow Mr Giddings to be redeployed into other work within PKCT, whether through offers of voluntary redundancy or by reducing contractors. In my view there was no real difficulty for Mr Green in understanding that cl. 13.5 required PKCT to offer redeployment and voluntary redundancies before implementing forced redundancies but Mr Green was determined not to do so. Nor was there any real difficulty for Mr Green in understanding that the obligation to investigate all avenues to avoid forced redundancies, including by the reduction of contractors, required PKCT to make a greater effort than it did. His decision to only consider reducing contractors that were engaged on a full time and permanent basis (when none were) took a somewhat contrived approach to the Agreement. He must have understood that was not the intent of cl. 13.5.3.

456    His Honour seems to have decided that Mr Green could not genuinely have held the view that cl 7 of the Agreement did not require PKCT to offer voluntary redundancies in relation to “stand-alone” positions, and could not genuinely have held the view that cl 13.5 only required PKCT to consider reducing permanent and full-time contractors.

457    His Honour accepted that PKCT’s approach to its obligation to investigate reducing contractors “followed receipt of legal advice authorised by Mr Green in June 2014”. That legal advice was, in my opinion, wrong for the reasons I have given earlier. However, it was at least arguable that cl 13.5 did not require PKCT to make use of voluntary redundancy in relation to Mr Giddings’ position and did not require PKCT to investigate reduction of contractors other than those engaged on a permanent and full-time basis. I do not think it is open to infer that Mr Green could not genuinely have believed that his interpretation of cl 13.5 was correct, particularly when it was informed by legal advice.

458    What is left is that Mr Giddings’ employment was terminated in circumstances where his employment might have been able to be saved if Mr Green had been motivated to do so, and where Mr Giddings’ Union roles and industrial activities provided a motivation for Mr Green to terminate his employment. In particular, Mr Green gave no explanation as to why Mr Giddings was not offered the Team Coordinator or Backup Coordinator positions which became vacant on 26 September 2014.

459    In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466, the Full Court (Weinberg, Bennett and Rares JJ) said at [31]:

Even though he spoke of the common law position, Dixon J’s classic discussion in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363 of how the civil standard of proof operates appositely expresses the considerations which s 140(2) of the Evidence Act now requires a court to take into account. Dixon J emphasised that when the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. He pointed out that a mere mechanical comparison of probabilities independent of any belief in its reality, cannot justify the finding of a fact.

460    The evidence leaves a deep suspicion that the reasons for the termination of Mr Giddings’ employment included his Union roles and industrial activities. Yet, suspicion is not enough. I am not actually persuaded that a substantial and operative reason for Mr Green’s decision to terminate Mr Giddings’ employment was his Union roles or his industrial activities.

461    At first glance, my conclusion provides an incongruous result. As a result of Mr Green’s decision, PKCT contravened ss 340 and 346 of the Fair Work Act. Yet, Mr Green was not knowingly concerned in that contravention. However, the differing results are a consequence of the onus of proof being on PKCT in the former case and on the respondents in the latter case.

Reinstatement

462    The primary judge ordered that Mr Giddings and Mr Rosewarn be reinstated to employment with PKCT. The appellants appeal against that order on the ground that s 545 of the Fair Work Act does not provide the Court with the power to reinstate a person to a position which does not exist at the time the order is made.

463    I have had the advantage of reading the judgments of Jessup J and White J in draft. I respectfully agree with their Honours that this part of the appeal should be dismissed for the reasons given by Jessup J.

Disposition of the appeal

464    My conclusions differ from those of Jessup J and White J in three respects.

465    Firstly, I consider that the primary judge did not err in finding that PKCT failed to comply with its obligations under cl 7 of the Agreement.

466    Secondly, my opinion is that his Honour’s finding that PKCT contravened ss 340 and 346 of the Fair Work Act should be upheld.

467    Thirdly, the appeal should be allowed to the extent that it challenges his Honour’s finding that Mr Green himself contravened ss 340 and 346 of the Fair Work Act, and the proceeding against Mr Green should be dismissed.

468    I would grant leave to appeal, if leave is necessary. I would allow the appeal in part, dismiss the proceeding against Mr Green, and otherwise dismiss the appeal.

Associate:

Dated:    5 August 2016

REASONS FOR JUDGMENT

WHITE J:

469    The circumstances giving rise to this application for leave to appeal are set out comprehensively in the reasons of Jessup J. It is not necessary to repeat them.

470    However, in order to provide the context for my reasons concerning the issues in the application, it is convenient to summarise some aspects. In doing so, I will use the designations which the parties had at trial.

471    As will be seen, I agree with the orders proposed by Jessup J for the disposition of the application for leave to appeal.

472    On 11 December 2014, the first respondent in the proceedings in the first instance, Port Kembla Coal Terminal Ltd (PKCT), terminated the employment of three employees with immediate effect. The decision-maker within PKCT was the second respondent at first instance, Mr Green, who held the position of General Manager. Except when it is necessary to distinguish between them, I will refer to the respondents as “PKCT”.

473    The dismissed employees were the second applicant, Mr Giddings, the third applicant, Mr Rosewarn, and the fourth applicant, Ms Arber. Each was a member of the Construction, Forestry, Mining and Energy Union (the CFMEU), which was the first applicant.

474    In the proceedings at first instance, the applicants alleged that PKCT had, in relation to the terminations, engaged in unlawful conduct by breaching:

(1)    section 50 of the Fair Work Act 2009 (Cth) (the FW Act) by not complying with the consultation provisions in cl 7 of the Port Kembla Coal Terminal Enterprise Agreement 2012-2015 (the PKCT Agreement);

(2)    section 50 of the FW Act by not complying with the provisions in cl 13.5 of the PKCT Agreement because it had not made use of voluntarily redundancies and had not investigated the possibility of avoiding forced redundancies by reducing the number of contractors it engaged;

(3)    section 50 of the FW Act by not complying with a provision in Appendix 1, cl 4(k) concerning agreement on increases or reductions in appointed positions;

(4)    sections 340 and 346 of the FW Act in the case of Mr Giddings, by terminating his employment for prohibited reasons, namely, his role in the CFMEU and his industrial activities.

475    The CFMEU and Mr Giddings alleged that Mr Green was liable as an accessory in respect of PKCT’s contraventions of ss 340 and 346 on the basis that he had been “knowingly concerned” in those contraventions (s 550(2) of the FW Act).

476    The primary Judge dismissed the claim concerning the contravention of Appendix 1, cl 4(k), at [398]. No cross-appeal has been brought in respect of that dismissal. Accordingly, it need not be considered further.

477    The Judge upheld each of the remaining claims (CFMEU v Port Kembla Coal Terminal Ltd (No 2) [2015] FCA 1088). Subsequently, the Judge made orders that each of Mr Giddings and Mr Rosewarn be “reinstated to his employment” with PKCT. He directed that identified portions of the termination payments each had received be treated as compensation in respect of back pay for the period between the terminations and 16 November 2015 (the date of the Judge’s orders) and that the balance be refunded to PKCT. The Judge declined to make an order for the reinstatement of Ms Arber.

478    The Judge then adjourned consideration of the applicant’s remaining claims to a date to be fixed.

479    PKCT took the view that, because the Judge had not yet made final orders, it needed leave to appeal. Subject to one qualification, the applicants did not contest the grant of leave. Their qualification was that PKCT’s 22 page outline of submissions did not address several of the 39 separate grounds in its draft notice of appeal, and that leave should not be granted in respect of those grounds it had not addressed. Consideration of this submission would require a comparison of the grounds in the draft notice of appeal with PKCT’s outline of submissions. In the view I take of the matter, such an exercise is unnecessary.

480    In substance, the hearing proceeded as though on an appeal.

When the decisions were made

481    It was common ground that PKCT had commenced a review of its business in March 2014. Its purpose was to identify ways by which PKCT could achieve efficiencies and savings, including by determining whether there were any activities which could be done differently and whether there were any positions which were no longer required.

482    This review culminated in a decision by Mr Green that the positions occupied by Mr Giddings, Mr Rosewarn and Ms Arber were no longer required and, in turn, to the decisions to terminate their employment. Mr Giddings had been an employee of PKCT for many years and, from May 2013, occupied the position of Long Term Planner. The Judge found that this was a senior position created as a result of a reorganisation by PKCT in 2013 of the way in which it planned and executed maintenance work, at [35]. Since April 2013, Mr Giddings had been the Lodge President, the most senior CFMEU officer at the terminal, at [36].

483    Mr Rosewarn was also a long term employee and in 2014 held the position of Facilities Maintenance Engineer. Ms Arber had been employed since 13 September 2010 as an Administration Assistant.

484    The Judge found, at [92] and [284], that Mr Green made the decision to abolish the positions occupied by Mr Giddings and Mr Rosewarn, and at least one of the administrative assistant positions (of the kind occupied by Ms Arber) on or shortly after 1 August 2014. The Draft Notice of Appeal did not contain any explicit challenge to that finding. PKCT contended nevertheless that such a challenge was implicit in other grounds. In particular, counsel submitted that Ground 20 contained such a complaint as did Grounds 9 and 10. Those grounds provide as follows:

[9]    The primary Judge erred (at [285]) by finding that the first appellant failed to consult and so breached clause 7 of the Agreement on or about 1 August 2014.

[10]    The primary Judge erred by finding (at [286]) that the first appellant did not comply with clause 7 of the Agreement between 1 August 2014 and 2 December 2014.

…

[20]    The primary Judge’s findings as to the “unreliability” of the evidence of the second appellant, and Messrs Gorman and Stewardson was unsafe in that it was actuated by an erroneous finding by the primary Judge that the Organisational Operational Review Report presented by counsel for the first respondent (Exhibit A5) in a sequence of three reports was reliable as representing evidence of the actual contents of the document at particular points in time.

485    It is not readily apparent that these grounds do include a contention that the Judge had erred by finding that the relevant decision had been made by Mr Green on or shortly after 1 August 2014. On its face, the focus of Ground 9 seems to be on the Judge’s finding concerning PKCT’s failure to consult and not on the finding as to when the decision had been made. Likewise, the focus of Ground 10 seems to be a complaint that the Judge should have found that there had been consultation of the requisite kind between 1 August and 2 December 2014; and Ground 20 is a more generalised complaint about the Judge’s assessment of the evidence of Mr Green, Mr Gorman and Mr Stewardson.

486    The Court raised these concerns with counsel at the hearing but PKCT did not apply to amend the grounds. Instead, counsel maintained the submission that such a challenge was implicit in those grounds.

487    I consider it appropriate to take into account that the draft notice of appeal alleges 39 separate errors by the primary Judge. PKCT appears to have been assiduous in identifying every finding in the primary judgment about which it is dissatisfied. In that context I consider it appropriate to infer that, if PKCT had wished to contend that this particular finding of the Judge was wrong, it would have said so expressly. The terminology of the existing grounds should not be given a strained construction so as to include additional grounds.

488    I have also had regard to PKCT’s outline of submissions. This (like the draft notice of appeal) was a difficult document with which to work. Because of this, the Court directed PKCT to provide a document which, amongst other things, identified in relation to each issue on the application of leave to appeal, the paragraphs in the outline which contained the outline of argument to be presented on that issue. The paragraphs identified by PKCT in this document in relation to Grounds 9, 10 and 20 (Outline [110]-[120], [56]-[64] and [73]) do not contain any assertion that the Judge erred in finding that the relevant decision had been made by Mr Green on or shortly after 1 August 2014, let alone an outline of an argument to be presented in support of an alleged error of this kind. The alleged error appears to have been raised for the first time on the hearing of the application for leave.

489    Having regard to all these matters, I consider that the application for leave to appeal should be determined on the basis that there is no challenge to the decision of the trial Judge that Mr Green made the decisions concerning the redundancy of the positions occupied by Mr Giddings, Mr Rosewarn and Ms Arber on or very shortly after 1 August 2014.

Clause 7 of the PKCT Agreement

490    Clause 7, which imposes consultation obligations, is set out in the reasons of Jessup J. However, for convenience, I will repeat it:

7.    Workplace Change and Consultation

7.1    Consultation over significant change or effect will occur where:

a.    the Company is considering introducing a major change to production, program, organisation, structure, technology, shift arrangements, work organisation or the level of outsourcing in relation to its enterprise; and

b.    the change, if implemented, is likely to have a detrimental or significant effect on employees.

7.2    The purpose of consultation is to:

a.    Resolve issues, where possible, at the workplace and avoid unnecessary problems by identifying and discussing matters of actual or potential concern as close to the workplace as possible;

b.    Improve the level of understanding between management, Employees and Employee Representatives by exchanging relevant information on a timely basis; and

c.    Deliver an efficient decision-making process by ensuring Employees are aware of a review of their work area that could lead to significant change or effect on working arrangements and allowing employees and Employee Representatives inputs to be taken into consideration through a process of consultation, prior to a final decision being taken by management.

7.3    The Company will give prompt and genuine consideration to matters raised by the relevant Employees and their Employee Representatives.

7.4    The Company will notify the relevant Employees and their Employee Representatives of the proposed change as soon as a decision has been made.

7.5    The consultation process may be modified by agreement between the parties.

7.6    Significant change or effect may include but is not limited to:

a.    major changes in the composition, operation or size of the Company’s workforce; or

b.    the skills required; or

c.    the significant restructuring of work organisation; or

d.    proposals by the Company to outsource services or contract out services currently provided by Company Employees.

7.7    The above definition seeks to illustrate that the changes requiring extensive consultation generally need to have broad impacts and be likely to affect a significant part of the Company’s operations or affects Employees working arrangements.

7.8    The consultations will be conducted within a context which acknowledges the statutory obligations and responsibilities of the Company and where the Employees and Employee Representatives do not have a power of veto over the Company’s final decision. This does not affect the right of the Employees or their representatives to notify a dispute through the agreed Dispute Settlement Procedure.

491    The Judge held that PKCT breached its obligations to consult pursuant to cl 7 in relation to the decisions to abolish the positions of each of Mr Giddings, Mr Rosewarn and Ms Arber and to terminate their employment. The Judge summarised his finding at [7], by saying that PKCT had breached cl 7 because:

(a)    the proposal to abolish positions and terminate employment involved a major workplace change which, if implemented, was likely to have a detrimental or significant effect on employees. The approach PKCT took to its obligations under the Agreement meant that the proposal had that effect on conditions of employment well beyond the three employees immediately affected; and

(b)    PKCT’s obligation to consult arose when it was considering introducing a major change and was not restricted to circumstances where it had decided to make such a change. Nor was its obligation limited to consultation about the implementation of a decision finally made.

(Emphasis in the original)

492    In relation to the first of these findings, the Judge rejected PKCT’s submission that consultation was not required in the present case because the proposed abolition of positions and terminations of employment involved only three of its 98 employees and related to roles which had only recently been added to its operations and accordingly could not be regarded as having the character of a “detrimental or significant effect on employees”, at [251]-[253]. The Judge gave six reasons for rejecting PKCT’s submissions, at [253]-[261]. They are summarised at [181] in the reasons of Jessup J.

493    In relation to the second, the Judge rejected PKCT’s submission that cl 7 imposed an obligation to consult only after it had made a decision concerning the redundancies of Mr Giddings, Mr Rosewarn and Ms Arber, at [262]-[264].

494    The Judge held, at [8], that the contravention of cl 7 occurred because PKCT:

(a)    did not consult when it was considering the proposed abolition of positions;

(b)    did not begin consulting with the Union until its view regarding the abolition of positions and redundancies was well entrenched. The consultation it provided was too late and the Union was not given a meaningful opportunity to affect the proposal;

(c)    did not consult until four months after it made the relevant decisions;

(d)    merely gave the appearance that it was engaging in consultation when, in fact, it did not genuinely consult;

(e)    did not provide relevant information to the Union in a timely way so as to allow proper consultation to occur; and

(f)    did not allow sufficient time for proper consultation to occur.

495    In his oral submissions, counsel for PKCT submitted that there were two issues for the Court’s determination in relation to cl 7: whether the clause applied at all in the circumstances leading to the redundancies and terminations and, if so, the stage in the process at which the consultations for which the clause provides was required. Counsel accepted however, that there was a third issue, namely, whether an obligation to consult in the manner contemplated by cl 7 was also imposed by cl 9 of the PKCT Agreement.

496    PKCT’s principal submission was that, putting to one side the meaning of the term “is considering” in subcl (1)(a), the obligation to consult imposed by cl 7 is enlivened only when two separate elements exist: first, it is proposing (to use a more neutral word) a “major change” of a particular kind; and, secondly, that change, if implemented, would have an effect of the defined kind on employees. It contended that the circumstances in relation to the redundancies and terminations of the applicants did not constitute a “major change” of the defined kind.

497    Subject to two qualifications, I respectfully agree with the reasons of Jessup J at [182]-[190] for concluding that PKCT’s submission on this topic should be upheld, and the responsive submissions of the applicants rejected.

498    The first qualification concerns the meaning of the term “work organisation” in cl 7.1(a). That is a term of variable meaning. At its widest, it could mean something like “the way in which things are done” in PKCT’s terminal operations, including its employee allocations. On that construction, the change implemented by PKCT may have amounted to a change in “work organisation” because there was some change in the way it would conduct its operations. However, it is not necessary to express a concluded view about this because, even if that be an appropriate construction, it is difficult to characterise the change in the way in which PKCT organised the way things were done in its operations in the present case as “major”. This is especially so taking into account the elaboration of the term “significant change” (which seems to be regarded as a synonym for “major change”) in cll 7.6 and 7.7.

499    The second qualification is that I do not regard a simple comparison between the number of employees to be terminated, and the number of the employees in its workforce overall, for which PKCT contended, as being necessarily conclusive of the question of whether a change is “major”. Much may depend on the circumstances of a given case including, for example, the seniority and importance of the employees in PKCT’s operations, the extent to which PKCT’s employees work in an integrated or disconnected manner; the consequences for the continuing employees of the redundancies and consequent terminations, as well as other matters. In the present case, the primary Judge did not rest his conclusion on an analysis of this kind. Nor did the applicants contend, in the manner of a notice of contention and with references to the evidence, that the Judge should have made findings on these matters in relation to their redundancies and terminations.

500    PKCT’s second submission was that, even if cl 7 was applicable, the obligation to consult did not arise until it had made a decision to implement a major change of the defined kind which would have a detrimental or significant effect on employees. It contended that cl 7.4 was significant in this respect. It requires PKCT to “notify the relevant Employees and their Employee Representatives of the proposed change as soon as a decision has been made”. PKCT submitted that the notification contemplated by cl 7.4 initiated the process of consultation contemplated by cl 7 as a whole, with the consequence that the clause requires consultation only after it has made a decision. To an extent, this submission draws strength from the fact that cl 7 is silent as to the process to be followed after the notification required by cl 7.4 has been given. This may suggest that the content of cll 7.1 to 7.3 is to govern the parties’ conduct once a cl 7.4 notification has been given.

501    Counsel also referred to the difficulties in identifying precisely when the obligation arises if the trigger point is consideration and not a decision. He noted that forms of consideration occur from the time of initial conception of an idea and may (or may not) continue until the development of a firm proposal. Counsel submitted that it was not easy to identify when, in that continuum, the obligation imposed by cl 7.1 arose.

502    In my opinion, there are a number of indications that PKCT’s submission on this topic should not be accepted. First, the terminology in cl 7.1 is important. The term “is considering” is used, in contrast to the term “decision” in cl 7.4. This suggests naturally that the PKCT Agreement requires that consultation, in the circumstances to which cl 7.1 refers, should occur at the consideration stage and not after the consideration has concluded and a decision made.

503    This inference is strengthened by comparison with the standard consultation clause determined by the Conciliation and Arbitration Commission in the Termination, Change and Redundancy Case (1984) 9 IR 115 (TCR) at 127-8. That clause was as follows:

41 - INTRODUCTION OF CHANGE

Employer's duty to notify

(a)    (i)    Where an employer has made a definite decision to introduce major changes in production, program, organization, structure or technology that are likely to have significant effects on employees, the employer shall notify the employees who may be affected by the proposed changes and their union or unions.

(ii)    “Significant effects” include termination of employment, major changes in the composition, operation or size of the employer's workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations and the restructuring of jobs. Provided that where the award makes provision for alteration of any of the matters referred to herein an alteration shall be deemed not to have significant effect.

Employer's duty to discuss change

(b)    (i)    The employer shall discuss with the employees affected and their union or unions, inter alia, the introduction of the changes referred to in subclause 41(a) hereof, the effects the changes are likely to have on employees, measures to avert or mitigate the adverse effects of such changes on employees and shall give prompt consideration to matters raised by the employees and/or their unions in relation to the changes.

(ii)    The discussions shall commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in subclause 41(a) hereof.

(iii)    For the purposes of such discussion, the employer shall provide in writing to the employees concerned and their union or unions, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that any employer shall not be required to disclose confidential information the disclosure of which would be inimical to the employer's interests.

504    It can be seen that cl 41(a)(i) required consultation only when an employer had made a “definite decision” to introduce major change of the defined kind.

505    It was common ground that cl 7 in the PKCT Agreement is a modern day emanation of the TCR consultation provision. This being so, it appears that the parties made a deliberate decision to depart from the terminology used in the TCR provision and to require consultation at the consideration stage, rather than later, when the consideration culminates in a decision. The Court should be slow not to give effect to such an apparent deliberate change in intention. In effect, the parties to the PKCT Agreement appear to have intended that the consultations contemplated by cl 7 should not be confined to the effects of a decision already decided upon by PKCT but may extend to the matters which may be the subject of the contemplated decision, provided that, if implemented, it will effect a major change of the defined kind and be likely to have a detrimental or significant effect on employees.

506    Secondly, the purpose for the consultation stated in cl 7.2 and, in particular, in cl 7.2(c) is instructive. It indicates that a purpose of the consultation is to deliver an effective decision-making process by ensuring employees are aware of a review of their work that could lead to significant change or effect and allowing their inputs and those of their representatives to be taken into consideration through a process of consultation prior to a final decision being taken by management. This is an express contemplation of consultation at the pre-decision stage rather than the post-decision/pre-implementation stage. To my mind, this statement of purpose is directly inconsistent with the construction of cl 7.1 for which PKCT contended.

507    I agree with PKCT that there may be difficulties in some circumstances in identifying when the obligation to consult is enlivened. To my mind, however, the presence of such difficulties should not control the construction of cl 7.1. No doubt the parties contemplated cl 7.1 being implemented in a practical way and not as catching thought bubbles or concepts in an inchoate state of development. It is also to be observed that cl 7.1 operates when it is PKCT itself which is considering the introduction of a major change of the defined kind and it may not be every consideration by one of its employees which is to be attributed to PKCT for this purpose.

508    Accordingly, had it been necessary to do so, I would have rejected PKCT’s submission that the stage for consultation had not arisen in this case until 2 December 2014. On the Judge’s findings, that stage had arisen before 1 August 2014 and it is plain that PKCT had not consulted with the applicants or the CFMEU by that date.

509    However, for the reasons given earlier, I would hold that PKCT did not thereby contravene cl 7. That is because the change it contemplated was not a “major change” of the defined kind.

The effect of cl 9

510    On the hearing of the application for leave to appeal, counsel for PKCT acknowledged that cl 9 of the PKCT Agreement contained an alternative source of an obligation on PKCT to comply with cl 7. Counsel submitted, however, that cl 9 did not have that effect in the present case.

511    The primary Judge did not address the matter in this way. Instead, he referred to cl 9 as supporting the construction of cl 7.1 which he considered to be appropriate.

512    Clause 9, which has the heading “Employment Security”, provides (relevantly) as follows:

9.1    The parties acknowledge that job security is a mutual obligation. Security of employment is important for improving working relationships, trust and cooperation with change. The parties do not want an environment where everyone is working in fear of losing their employment. The parties want an environment where people focus on doing their jobs safely, well and implementing improvement actions. Real employment security can only be achieved by successful business performance.

9.2    It is not intended that the number of direct, full-time employees engaged by the Company under this Agreement at the date that it is approved will be reduced over the life the Agreement. However, the Company retains the right to make such changes should circumstances arise which, in its opinion, necessitate change to the numbers of employees per shift or the skills components of teams. In such circumstances the Company will comply with Clause 7 (Workplace Change and Consultation) prior to the implementation of any change to manning levels.

9.3    If a redundancy situation still exists after the consultation process in Clause 7 has been complied with, this will be dealt with in accordance with Clause 13.5 Redundancy.

…

513    The applicants submitted that the last sentence in cl 9.2 had the effect in each of their cases of imposing an independent obligation on PKCT to comply with cl 7. PKCT, on the other hand, submitted that the circumstances to which the last sentence in cl 9.2 refers are those arising from a necessity to change the numbers of employees per shift or the skills components of teams. It submitted that neither circumstance applied presently because none of the applicants was engaged in shift work and there was no suggestion that their respective terminations resulted in any change in the “skills components” of any team.

514    The second limb (the change in skills components of teams) can be put to one side. Counsel for the applicants did submit that the terminations resulted in a reduction of the skills components of teams, but did not take the Court to evidence justifying such a conclusion. The principal focus of the parties’ submissions concerned the term “employees per shift”.

515    In the industrial context, shift work is usually regarded as the performance of continuous work in an employer’s establishment over an extended period (often 24 hours but sometimes less) by successive cohorts of employees. Thus, it is common to speak of employees working the morning shift, the afternoon shift or the night shift, as the case may be.

516    In the present case, the meaning of the term “per shift” in cl 9.2 is to be gleaned from the PKCT Agreement read as a whole. In my opinion, such a reading indicates that the PKCT Agreement draws a distinction between “day workers” and “shift workers”, even though some shift workers work the day shift, and that, in the main, the term “shift” is used with reference to shift workers. The distinction is seen most clearly in cl 14 which contains prescriptions concerning work arrangements. The ordinary hours of work for a “flexible day worker” are 35.3 hours per week, whereas the ordinary hours for a “flexible shiftworker” are 35 hours per week and four hours rostered overtime (cl 14.1.1). The ordinary hours for flexible day workers are worked in accordance with a notional roster of the employees within a time span commencing at 6 am and concluding at 10 pm Monday to Friday. Flexible shift workers, on the other hand, work 12 hour shifts, with the day shift being from 7 am to 7 pm and the night shift from 7 pm to 7 am (cl 14.1.3).

517    Clause 1 of the PKCT Agreement contained the following definitions:

Flexible shiftworker

An Employee who performs Shiftwork, but can move to an alternative shift on the same or another agreed specified day to satisfy individual, team and operational requirements.

Flexible dayworker

An Employee who performs the notional Daywork roster but can adjust their starting or finishing times and the duration of the shift to meet individual, team and operational requirements.

518    The latter definition provides an illustration of the word “shift” being used in conjunction with flexible day workers. However, the word “shift” in this context is used in reference to the span of hours worked by the day worker rather than suggesting that such employees work in shifts.

519    Other indications of the distinction drawn between flexible day workers, who do not work in shifts, and flexible shift workers, who do, are seen in the roster arrangements provision contained in cl 14.3, in the “Variable Employee Rostering Arrangements” in cl 14.4 and, in particular, cl 14.4.6, in the resourcing provisions in cl 14.4.10, in the provisions concerning coordination for shift workers in cl 14.4.12, in the provisions concerning secondments in cl 14.6 and, in particular, cl 14.6.4 and cl 14.7.3, and in the rates of pay provisions, in particular, cl 15.2.4.

520    I agree that there are some indications in the PKCT Agreement to the contrary as there are some clauses which use the term “shift” or “shifts” without distinguishing between day workers and shift workers: see, for example, cll 27.1, 27.2, 27.3 and 28.1. There is the further consideration that the second sentence in cl 9.2 in which the term “per shift” is used is a qualification of a commitment by PKCT not to reduce the number of its direct, full-time employees over the life of the PKCT Agreement. It could be said that, unless the term “per shift” is understood as referring to all employees, that PKCT does not have the benefit of the qualification for which cl 9.2 otherwise provides. However, this is not a strong indication as cl 9.6 provides expressly that the commitments in the earlier subclauses do not prevent PKCT from using natural attrition or a process of redundancy to reduce the size of its workforce. In the presence of cl 9.6, it is more natural to understand cl 9.2 as containing a commitment by PKCT to maintain the number of direct full-time employees over the life of the PKCT Agreement but with the qualification that it may change the number of employees “per shift” if circumstances necessitate this, provided that it then engages in the process of consultation required by cl 7. Moreover, the term “per shift” appears naturally to be a term of limitation. If the parties had intended that the qualification in the second sentence of cl 9.2 should apply to all employees whether engaged in shift work or not, it seems unlikely that the limiting term “per shift” would have been used at all. It would have been more natural for cl 9 to have referred to “employees” without qualification.

521    As each of the applicants was a day worker, the changes associated with their redundancies did not necessitate a change in the number per shift in the relevant sense. Accordingly, I consider that cl 9.2 did not, independently of cl 7, require PKCT to consult with the applicants or the CFMEU in accordance with cl 7.

Conclusion on breach of cl 7

522    For these reasons, I consider that the Judge’s finding that PKCT contravened cl 7 of the PKCT Agreement should be set aside.

Clause 13.5

523    Again, for convenience, I will repeat the terms of cl 13.5:

13.5    Redundancy

13.5.1.    The Company undertakes that in managing manning levels to suit the business needs it will make use of redeployment and voluntary redundancy prior to implementing any forced redundancies.

13.5.2.    If workforce reductions for Employees bound by this Agreement were to become necessary, they will be taken through the consultative process described in this Agreement.

13.5.3.    The Company shall investigate all avenues to avoid forced redundancies, including the reduction of contractors, where the work performed by contractors can be performed by Employees of the Company, having regard to the skills and competencies of Employees and the nature of the work in question.

13.5.4    If a redundancy situation still exists after the above steps have been taken, the process for determining required compulsory redundancies within a classification will be through consultation, including taking length of service into account.

13.5.5    Should the need for redundancy arise, the PKCT standard severance package of four weeks pay in lieu of notice and three weeks pay per each year of service paid at the Special Purpose Rate shall apply, unless otherwise agreed or determined.

524    Looked at generally, cl 13.5 imposes an overarching obligation on PKCT to “investigate all avenues to avoid forced redundancy” (cl 13.5.3) and, in particular, to make use of redeployment, to make use of voluntary redundancy, and to investigate reduction of contractors when employees who have been considered for retrenchment may, having regard to their skills and competencies and the nature of the work in question, perform work which is being carried out by contractors.

525    The primary Judge found that PKCT did not comply with the obligations imposed by cll 13.5.1 and 13.5.2 in relation to the terminations of Mr Giddings and Mr Rosewarn, but that it had done so in relation to the termination of Ms Arber. The Judge summarised his conclusions with respect to the contraventions of cl 13.5 as follows:

[9]    In my view PKCT breached its obligation under cl. 13.5 of the Agreement to:

(a)    make use of redeployment and voluntary redundancy prior to implementing “forced redundancies” (which is the term used in the Agreement for compulsory redundancies) as required under cl. 13.5.1; and

(b)    investigate all avenues to avoid the forced redundancies of the affected employees including by the reduction of contractors, as required under cl 13.5.3.

In summary, I say this because PKCT did not give proper consideration to redeploying Mr Giddings and Mr Rosewarn into any suitable vacancy which might have arisen through offers of voluntary redundancy or any suitable role which might have arisen by PKCT reducing its use of contractors.

[10]    PKCT refused to seek expressions of interest in voluntary redundancy in relation to Mr Giddings’ and Mr Rosewarn’s positions, and as a result they were denied the possibility of redeployment within PKCT. … PKCT refused to consider reducing contractors, unless the contractors were engaged on a full-time and permanent basis (when none were so engaged). That approach to the construction of the Agreement meant that no contractors fell to be considered by PKCT in its investigation of reducing contractors.

526    As can be seen, this summary suggests that the Judge had found that PKCT breached cll 13.5.1 and 13.5.3 because it had not given proper consideration to redeploying Mr Giddings and Mr Rosewarn into any suitable vacancy which may have arisen through offers of voluntary redundancy or any suitable role which may have arisen by a reduction of its contractors.

527    With respect to the Judge, this summary is incomplete, because he had also found that PKCT had failed to make use of redeployment in respect of Mr Giddings and Mr Rosewarn in a way which was independent of his findings concerning voluntary redundancy and reduction of contractors. The Judge found that there was no cogent evidence that PKCT had given proper consideration to comparing the skills and competencies of Mr Giddings and Mr Rosewarn against those required in other positions, at [354]; that Mr Green did not have proper understanding of Mr Giddings and Mr Rosewarn’s skills and competencies compared with the requirements in other positions, at [356]; that none of Mr Green, Mr Gorman or Mr Stewardson had spoken to Mr Giddings or Mr Rosewarn to ask for their assessment of their capacity to fill properly other positions, at [357], and then concluded:

[358]    In fact, it is unsurprising that nobody undertook a proper comparative assessment of Mr Giddings’ and Mr Rosewarn’s skills and competencies in the period from August through to December 2014. Given that Mr Green had decided in August 2014 that PKCT would not offer voluntary redundancies in relation to their positions, it is likely that he and his senior managers thought it unnecessary to do that work.

528    The Judge then went on to find that each of Mr Giddings and Mr Rosewarn had suitable skills and competencies to perform properly a number of positions within PKCT, at [359]-[369]. He concluded as follows:

[370]    Mr Green’s evidence that Mr Giddings and Mr Rosewarn did not have suitable skills and competencies for them to be placed into any other positions with reasonable training did him no credit. His evidence was far-fetched given Mr Giddings’ history of performing Area Planner work, the diverse work experience both employees had, their competence, their obvious ability to learn new skills, and the fact that nobody made a proper assessment of their skills and competencies in relation to other positions.

[371]    In my view by not undertaking a proper comparative assessment of the skills and competencies of Mr Giddings and Mr Rosewarn, and by failing to seek expressions of interest in voluntary redundancy in relation to their positions, PKCT breached its obligations to make use of redeployment and voluntary redundancy prior to implementing any forced redundancies, and to investigate all avenues to avoid their forced redundancies.

[372]    Mr Giddings also said, and I accept, that the positions of Team Coordinator and Backup Coordinator at PKCT were advertised as vacant on 26 September 2014 and those vacancies were filled on 3 November 2014. This tends to show that after the decision to abolish Mr Giddings’ and Mr Rosewarn’s positions was made in August 2014, but before it was announced, there were two vacant positions into which they could have been redeployed. By the time the proposal was announced the vacant roles had been filled. In taking this approach PKCT again failed to explore all avenues to avoid forced redundancies and it failed to comply with cl. 13.5.

(Emphasis added)

529    On their face, [371] and [372] are findings that PKCT had contravened cl 13.5.1 by not making use of redeployment in a way which was independent of the Judge’s findings with respect to voluntary redundancy and reduction of contractors.

530    It was Mr Giddings who gave evidence concerning the positions of Team Coordinator and Backup Coordinator which are the subject of the Judge’s findings in [372]. In his affidavit of 19 December 2014, Mr Giddings deposed:

[108]    I could have been redeployed to the Team Coordinator or Back Up Coordinator Positions. These positions are in the Shift Appointed Positions classification. These positions are a Grade 5 or Grade 6. I would have accepted redeployment into one of these positions.

It is implicit in [108] that Mr Giddings was asserting that there were two positions to which he could have been redeployed, and that he was capable of performing the duties in those positions.

531    In his affidavit of 10 February 2015, Mr Green responded to this evidence as follows:

[153]    I refer to paragraph 108. No team coordinator or Back Up Coordinator positions were vacant at the time of the restructure, nor are any vacant now. These roles are in a different classification to the LTP.

As can be seen, by [153] Mr Green disputed the availability of the positions identified by Mr Giddings, but not his ability to perform the duties involved.

532    Mr Giddings responded to this evidence from Mr Green in his affidavit of 23 February 2015:

[18]    I refer to paragraphs 153 and 154 of Mr Green’s statement and say that paragraphs 108 and 109 of my First Affidavit were directed to the issue of the potential for redeployment. In previous reorganisations at PKCT where consultation did occur with the union, voluntary redundancies created vacancies to facilitate such redeployment and this could also have occurred in the most recent review. Had consultation occurred, I may have accepted a transfer into roles which were not strictly redeployment but resulted in a decrease in my grading and salary. The example given would have resulted in approximately a $3000 decrease to go to Grade 5, or an increase in salary to go to Grade 6 (which attracted shift work rates of pay for that role). I note that there were in fact vacancies for team coordinator and back up coordinator positions, which were filled at PKCT on 3 November 2014, after they were advertised on 26 September 2014.

(Emphasis added)

Mr Giddings annexed to his affidavit copies of the document by which PKCT had on 26 September 2014 sought expressions of interest from its employees to fill two Shift Team Coordinator positions to commence in March 2015 and the announcements dated 3 November 2014 of those who would fill a Shift Team Coordinator position (commencing immediately), a Shift Team Coordinator position (commencing in May 2015) and a Backup Coordinator position (commencing immediately). These documents contradicted Mr Green’s evidence that coordinator positions had not been vacant “at the time of the restructure”. Mr Green did not challenge this evidence of Mr Giddings nor seek to explain the inferences arising naturally from the documents. Even on Mr Green’s own evidence that it was not until mid-October 2014 that he had decided to proceed with the abolition of the positions of Mr Giddings, Mr Rosewarn and one administrative assistant, the vacancies had existed at the time of the “restructure”, even if they no longer existed at the time of the terminations on 11 December 2014.

533    Thus, it was open to the Judge to conclude that PKCT did, after Mr Green had decided on or about 1 August 2014 that Mr Giddings and Mr Rosewarn’s positions were redundant, have other positions which were available and suitable to their respective skills and competencies and to which they could have been redeployed.

534    None of PKCT’s grounds of appeal challenged the Judge’s findings in [372] that there were two vacant positions into which each of Mr Giddings and Mr Rosewarn could have been redeployed and that, by announcing the retrenchments after the vacancies had been filled, PKCT had thereby failed to explore all avenues to avoid forced redundancies, in contravention of cl 13.5.

535    It is not clear whether there was direct evidence of Mr Rosewarn’s ability to perform the functions in the two positions identified by Mr Giddings. However, the Judge was favourably impressed with the evidence concerning Mr Rosewarn’s qualifications, experience and ability to do a number of other jobs within PKCT. This evidence appears to have provided an adequate basis for the Judge’s finding as to Mr Rosewarn’s ability to fulfil the two positions and, in any event, there has been no appeal against that part of the Judge’s findings.

536    In his submissions in reply to those of the applicants which had drawn attention to the findings in [372], counsel for PKCT submitted that the absence of oral evidence with respect to the two positions identified by Mr Giddings meant that their relevance was uncertain. I would not accept that submission. The passages in Mr Giddings affidavit, which I have set out above, make readily apparent the relevance of this evidence.

537    There is accordingly a finding by the Judge that PKCT contravened cl 13.5.1 by not making use of redeployment and that finding is not now challenged.

538    Despite the absence of challenge to this part of the Judge’s findings, it is appropriate to consider the proposed appeal against the Judge’s findings that PKCT contravened cl 13.5 in other respects.

539    Seven of the grounds in PKCT’s draft notice of appeal alleged errors by the Judge with respect to his construction and application of cl 13.5 of the PKCT Agreement. Two of those grounds (4 and 7) did not add to the substance of the complaints raised in other grounds. Of the remaining five grounds, four raised complaints of errors by the Judge in the construction of cl 13.5 and one, Ground 5, raised a challenge to the Judge’s findings of fact.

Voluntary redundancies: cl 13.5.1

540    PKCT’s criticisms of the Judge’s construction of the obligations imposed by cl 13.5 with respect to the use of voluntary redundancies are set out in the reasons of Jessup J, and I will not repeat them. Like Jessup J, I consider that the proper construction of cl 13.5.1 does give rise to a number of issues. However, I take the view that it is unnecessary to address those issues because I agree, with respect, with the reasoning of Jessup J in [172]-[173] concerning the use of local practice and usage in the construction of the expression “make use of … voluntary redundancy” in cl 13.5.1. In particular, I respectfully agree with the reasons of Jessup J in [173] for concluding that PKCT contravened cl 13.5.1 in the case of Mr Giddings and Mr Rosewarn. That being so, it is preferable to leave to an occasion when it is necessary to do so consideration of the other issues arising under cl 13.5.1.

Reduction in contractors: cl 13.5.3

541    Again, I can state my conclusions shortly. The Judge held at [378]:

[T]he obligation requires PKCT to undertake a bona fide investigation of reducing contractors. In relation to Mr Giddings and Mr Rosewarn it completely failed to do so. It did not undertake any proper comparative assessment of their skills and competencies to ascertain the viability of reducing contractors and redeploying them into that work, and instead it so restricted its consideration of reducing contractors that there were no contractors that fell to be considered.

542    The Judge identified the restriction to which he referred in this passage in [377] of the reasons, namely, “PKCT’s refusal to investigate reducing contractors unless the contractors were engaged on a full-time and permanent basis”.

543    It is apparent that the Judge relied on the evidence of Mr Green in identifying PKCT’s approach to reducing its contractors. In his affidavit of 10 February 2015, Mr Green deposed:

[125]    I was not prepared to redeploy employees into contract roles which are of a finite duration, where it did not make sense to do so having regard to the status of the contract and the skills required. Having considered the roles of contractors currently at PKCT, I was satisfied, based on the information provided to me from Mr Gorman and Mr Stewardson, that there were no roles undertaken by contractors that could be considered full-time or permanent that were practical to place the employees into.

(Emphasis added)

544    The second emphasised passage made it apparent that Mr Green had confined his consideration of contractor positions to those which were, amongst other things, “full-time or permanent”. I note that the Judge referred to contractors who were “full-time and permanent” rather than those who were “full-time or permanent” as stated by Mr Green in his affidavit. It was not suggested that anything turned on this difference in the determination of the proposed appeal, perhaps because Mr Green himself had used the former term in a letter of 8 December 2014 to Mr Timbs, the District Vice President of the CFMEU in which he explained PKCT’s approach:

PKCT has reviewed the need for contractors engaged by PKCT to determine whether any contractor’s work can be performed by a potentially affected employee, having regard to the skills and competencies of the employee and the nature and duration of the work.

There are no current vacant contract roles that the potentially affected employees may be redeployed into. PKCT has also considered non-vacant contract roles. There are currently no roles undertaken by contractors that could be considered full-time and permanent that PKCT’s operational requirements and business needs required full-time permanent employees to be placed into. PKCT will not redeploy full-time permanent employees into contract roles which are for a finite or uncertain duration where it does not make sense to do so having regard to the status of the contract and the skills required.

(Emphasis added)

545    The contemporaneous document made it apparent that PKCT had confined its consideration of the possible reduction of contractor positions to those that were full-time and permanent. This was a self-imposed limitation in that it was neither required nor authorised by the terms of cl 13.5.

546    There are other indications that PKCT had confined its consideration of contractor positions inappropriately. The Operations Organisational Review dated 16 October 2014 contained a “Bona Fide Redundancy Checklist”. The checklist question concerning contractors was in the following terms:

Are there contractors within the business doing a similar role which could be reasonably deemed to be permanent?

(Emphasis added)

This question was answered in the negative in the case of each of Mr Giddings, Mr Rosewarn and Ms Arber.

547    Accordingly, the Judge’s conclusion that PKCT had confined its consideration of the contractors who might be reduced in a way which was not warranted by cl 13.5.3 is unsurprising, and has not been shown to be in error.

548    PKCT’s draft notice of appeal raises two complaints concerning the Judge’s findings with respect to cl 13.1.5:

[5]    The primary Judge erred (at [377]) by finding that the first appellant “refused to investigate reducing contractors unless the contractors were engaged on a full-time and permanent basis”. The finding was against the evidence which was that the first appellant would consider contractor roles for reduction where those roles would only allow fixed term or part-time employment if done by an employee.

[6]    The primary Judge erred (at [383]) in finding that cl 13.5 of the Agreement imposed an obligation “to consider redeploying an effected employee initially into one contractor role and then moving him or her to another contractor role when the first role came to an end”.

549    There is nothing in proposed Ground 5. The summary of the evidence contained in this ground does not match the evidence given by Mr Green which I have set out above. It is true, as I have said, that the Judge proceeded on the basis that Mr Green required the contractors’ positions to be both full-time and permanent when he had used the disjunctive “or” but, as I have said, that was the approach which Mr Green had articulated in his letter to Mr Timbs on 8 December 2014.

550    There is force in PKCT’s complaint contained in Ground 6. I respectfully agree with the reasons of Jessup J in [179] on this issue. However, that conclusion does not have the consequence that an appeal against the Judge’s findings with respect to the contravention of cl 13.5 should be allowed. On the contrary, I consider, for the reasons stated above, that this aspect of the proposed appeal would be dismissed. In that circumstance, I would prefer not to express any view on the other issues of construction arising under cl 13.5.

Adverse action

551    The Judge found that Mr Giddings was a longstanding and active member of the CFMEU, and that he held a number of union and union-related leadership positions, at [420]. The applicants’ case was that PKCT had taken adverse action (terminating Mr Giddings’ employment) in contravention of ss 340(1) and 346 of the FW Act for prohibited reasons, namely, because Mr Giddings:

(1)    exercised, or proposed to exercise a workplace right, namely, his role or responsibilities under a workplace law and/or workplace instrument, being the roles of Lodge President and of employee representative under the PKCT Agreement; and/or

(2)    was an officer of an industrial association, namely, the Lodge President; and/or

(3)    had engaged in industrial activity as defined in s 347(a) and s 347(b)(ii), (iii) and (v) of the FW Act.

552    By reason of s 361 of the FW Act, PKCT had the onus of proving that its termination of Mr Giddings was not for any of these reasons. As Mr Green was the decision-maker, it was, as the Judge found at [419], his reasons for the decision to terminate which were relevant. However, one of the reasons which the Judge gave for finding Mr Green’s evidence to be unreliable was that the evidence corroborating it from Mr Gorman and Mr Stewardson was also unreliable, at [444].

553    At [426]-[443], the Judge summarised and evaluated the 10 matters which PKCT had submitted, taken in combination, indicated that Mr Green’s reasons for terminating Mr Giddings employment did not include his union roles and/or his industrial activities. The Judge accepted some of these matters: that there was a genuine basis for PKCT’s conclusion that Mr Giddings’ position was redundant, at [427]-[429]; that many of the industrial disputes in which Mr Giddings had been involved and on which the applicants relied had occurred so long ago as to be of little relevance, at [431]; that there was no evidence of other adverse action having been taken against Mr Giddings previously, despite his extensive participation in industrial activities, at [434]; that in the period when Mr Green was said to have had animus towards Mr Giddings, he had provided advantages to him in his employment (supporting him by payment in relation to his study for a Master of Business degree, promoting him to the highest grade under the PKCT Agreement, and treating him as an integral and trusted person in the job redesign process in 2013 in which Mr Giddings’ position as Long Term Planner had been created), at [435]; and that PKCT did not have any vacant positions suitable for Mr Giddings at the termination of his employment on 11 December 2014, at [438].

554    In respect of two of the other 10 matters, the Judge declined to draw the inferences for which PKCT had contended, but that rejection did not turn on his assessment of Mr Green’s reliability, at [437] and [441]-[442].

555    The Judge’s evaluation of only three of the 10 matters on which PKCT relied involved a rejection of Mr Green’s evidence, although some of these matters involved multiple sub-matters. The Judge said that he did not accept Mr Green’s evidence that it was not operationally efficient or reasonable to offer voluntary redundancies in relation to Mr Giddings’ position, at [439](b)]; that Mr Giddings did not have suitable skills and competencies to perform properly any other position within PKCT, at [439(c)]; that he had given proper consideration to the issue of reducing contractors, at [440(b)]; that Mr Giddings did not have suitable skills and competencies to undertake contractors’ work properly, at [440(c)]; and Mr Green’s evidence about the time he had made the decision that Mr Giddings’ employment should be terminated, at [443]. It is also implicit in the Judge’s conclusion concerning s 361 that he did not accept Mr Green’s own denial that he had taken any account of Mr Giddings’ union roles and his industrial activities.

556    Thus, it is evident that the Judge’s conclusion that PKCT did not discharge the s 361 onus turned in part on his assessment of the reliability of Mr Green’s evidence.

557    The draft notice of appeal contains 18 separate grounds alleging errors by the Judge in his findings that PKCT’s termination of Mr Giddings contravened the prohibitions on adverse action in ss 340(1) and 346 of the FW Act. Three of these (Grounds 18, 19 and 20) complain expressly of the Judge’s assessment of the evidence of Mr Green as “unreliable”. None, however, raised the complaint made in PKCT’s written outline, and made prominently at the hearing, that the Judge’s adverse assessment of Mr Green’s reliability was affected by the circumstance that Mr Green had not been given the opportunity at the trial to deal with a very serious criticism of his evidence made by the Judge. This was the Judge’s finding that Mr Green had deliberately failed to disclose relevant matters in the affidavit containing his evidence in chief. The Judge made a like criticism of Mr Gorman and Mr Stewardson.

558    As indicated, PKCT’s outline of submissions did contain a contention that, in making these criticisms of Mr Green, Mr Gorman and Mr Stewardson, the Judge had not complied with the approach explained by the majority (Heydon, Crennan and Bell JJ) in Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 at [64] and [67]. At [67], the majority said:

It is not sound judicial technique to criticise a party-witness for deliberately withholding the truth in a fashion crucial to a dismissal of that party's claim unless two conditions are satisfied. First, reasons must be given for concluding that the truth has been deliberately withheld. Secondly, the party-witness must have been given an opportunity to deal with the criticism.

559    Mr Green was a party in his own right to the proceedings. He was accordingly a “party-witness” of the kind to which the majority referred in [67]. The principle that a party-witness be given an opportunity to deal with any criticism which is crucial to a dismissal of the party’s claim is a manifestation of the wider proposition stated by Lord Herschell LC in Browne v Dunn (1893) 6 R 67 at 70-1 that, when a witnesses’ evidence is to be impeached, the witness must be given “an opportunity of making any explanation which is open to him, … [this being] essential to fair play and fair dealing with witnesses”.

560    Although PKCT did not include a complaint based on Kuhl in its grounds of appeal, I consider that it should be able to rely on that complaint on the application for leave to appeal. The applicants had notice of PKCT’s intention to rely on Kuhl and in fact made extensive submissions in response to it. No relevant prejudice is occasioned to them by reason of PKCT’s reliance on Kuhl, even though it had not been included in the draft notice of appeal. Further, it would be difficult for this Court to deal with the three grounds identified above which do complain of the Judge’s assessment of Mr Green’s reliability without considering this aspect of the trial. Finally, the Judge’s findings about Mr Green’s evidence are strong criticisms, and there would be some unfairness to him given, as I would conclude, PKCT’s complaints concerning the Kuhl approach are justified.

561    The Judge’s criticisms of Mr Green appear in the following paragraphs:

[146]    In my view the evidence tends to show that Mr Green had access to the senior managers’ documents through shared links on PKCT’s computer network and that he was aware of his senior managers’ approach. However, neither he or the senior managers disclosed the relevant documents or decisions in their affidavits. For example, none of them disclosed:

…

(b)    the OOR Report which was the central document in planning and documenting the Operational Review. This was a significant omission because the second and third draft OOR Reports in July 2014 show a critical change in PKCT’s approach to the proposed abolition of positions. …

None of them disclosed or explained this critical change in their affidavits and Mr Green did not disclose that his decision to abolition the positions and terminate the employment of the affected employees involved this critical change. In my opinion they sought to disguise that fact.

[147]    None of them disclosed that the final draft OOR Report of 16 October reveals that there was no material change in the proposal from late July. In my view they sought to conceal the fact that by the 1 August meeting Mr Green had been presented with a comprehensive and essentially complete proposal to abolish the relevant positions, and that the proposal did not materially change over the next four months. …

…

[194]    However, although [Mr Green’s] affidavit purported to be a full account of the decision-making process (which he confirmed in cross-examination) he failed to disclose some important documents and important parts of the decision-making process. In my view his failure was deliberate. ...

…

[199]    Mr Green’s failure to disclose the OOR Report occurred in the context that no other PKCT witness disclosed it either, and in my view it was not just a mistake. He did not disclose it even though it was the main report planning and documenting the Operational Review and it reveals the critical change in PKCT’s approach to its obligations under the Agreement. In my view his failure was deliberate. …

…

[205]    In his affidavit Mr Green did not disclose that, in late June 2014, he was advised by Mr Gorman that voluntary redundancies should not be offered in relation to Mr Giddings’ and Mr Rosewarn’s positions because it would reduce cost savings. … He said that he could not remember discussing that issue with Mr Gorman in late June but I prefer Mr Gorman’s evidence as to the date of discussion. I doubt that Mr Green had forgotten discussing that important question with Mr Gorman and in my view he sought to conceal the early date upon which he first considered not offering voluntary redundancies.

(Emphasis added)

562    As I have said, these are strong findings. The significance of findings of this kind was explained by majority in Kuhl at [64]:

[T]he conclusion by the trial judge that the plaintiff – a party-witness – deliberately withheld evidence reflected a stronger reaction. It operated as a finding that there had been an admission. It could be inferred that the evidence was withheld, in breach of the witness's duty to tell the whole truth in answer to the question, because the plaintiff was conscious that success in the litigation would be rendered impossible or less likely if the material withheld were revealed. Depending on the circumstances, when a party lies, or destroys or conceals evidence, or attempts to destroy or conceal evidence, or suborns witnesses, or calls testimony known to be false, or fails to comply with court orders for the production of evidence (like subpoenas or orders to answer interrogatories), or misleads persons in authority about who the party is, or flees, the conduct can be variously described as an implied admission or circumstantial evidence permitting an adverse inference. The position must be the same where there is a failure of a party-witness to comply with the duty of a witness to tell the whole truth. ...

563    During the cross-examination of Mr Green, it was, more than once, put to him that the affidavit containing his evidence in chief did not include particular documents or evidence of particular matters. However, the cross-examination did not go beyond that. It did not suggest that the absence of the documents or information resulted from a decision by Mr Green not to include that material, let alone a decision motivated by a desire to disguise relevant matters or to present an incomplete picture to the Court. On the hearing of the application for leave to appeal, counsel for the applicants did not submit that Mr Green had been given the opportunity to deal with the criticism made by the trial Judge that his failure to include documents and information was deliberate.

564    Counsel submitted instead that the Judge had concluded only that documents had been omitted because it was thought that they would not help PKCT’s case, and not that they had been concealed in the sense of hiding them so they could not be found. In my opinion, the language used by the Judge does not permit that understanding to be upheld, and it is in any event only marginally more benign.

565    This was not a case in which the only possible explanation for the documents and information not having been included in Mr Green’s affidavit was one of deliberate concealment. There are other possibilities: mistake; a misapprehension as to the significance of the documents; legal advice; and, in the case of some of the documents, the circumstance that PKCT had, at the time Mr Green made his affidavit, been maintaining a claim (ultimately unsuccessfully) for legal professional privilege. In these circumstances, it would not have been appropriate for the Judge to reason that their omission of the documents and information resulted necessarily from a deliberate decision to conceal them from the Court.

566    Accordingly, I am satisfied that the Judge’s findings concerning Mr Green’s concealment of documents and information should not be permitted to stand. The same applies in the case of Mr Gorman and Mr Stewardson.

567    I add, in fairness to the Judge, that it was, in my opinion, reasonable for him to expect that the narrative of events leading to the terminations to which Mr Green (and for that matter Mr Gorman and Mr Stewardson) deposed would be complete. As the majority observed in Kuhl at [64], a litigant who enters the witness box is under a positive duty to tell the whole truth in answer to the questions asked. Party-witnesses who are permitted or required to give their evidence in chief in affidavit form should not be under any lesser obligation. This is so because the affidavit is an alternative to the evidence in chief being provided orally. Further, it is usually the case that party-witnesses prepare their affidavits with the assistance of legal advisors and in a context which the form of the oath which the witness will be required to make when entering the witness box is well known. That oath includes a commitment to provide the court with “the truth, the whole truth and nothing but the truth”. In my opinion, a party-witness who, having made an oath in this form, presents an affidavit as the evidence in chief thereby deposes that the affidavit meets this standard. That is especially so when the witness is recounting a narrative of events and when, as in this case, it is the party-witness who carries the relevant onus.

568    It is apparent that the Judge was critical of Mr Green’s evidence in a number of other respects. The Judge said variously that he found aspects of Mr Green’s evidence to be “implausible”, “utterly implausible”, “improbable”, and “inherently unlikely”. In these circumstances, I have considered whether it may be said that the Judge’s findings that Mr Green had sought deliberately to conceal documents were not essential to his assessment of the reliability of Mr Green’s evidence relied upon by PKCT to discharge the s 361 onus. However, I do not consider such an analysis to be open. The Judge’s conclusion about Mr Green’s omission to disclose documents and other information appears to have been an integral part of his overall assessment of the reliability of Mr Green’s evidence. So much is evident from [16], [143]-[144], and [194]. I note also that the Judge relied upon his earlier findings concerning the unreliability of Mr Green’s evidence (which included his findings on the topic of concealment) when considering whether PKCT had discharged the s 361 onus, at [444]-[445].

569    Finally, when considering the claim that Mr Green was liable as an accessory, the Judge made a number of findings (which it is not necessary to recount presently) which were strongly critical of Mr Green’s evidence. It is evident that those findings too were influenced by the Judge’s view that Mr Green had set out to conceal documents from the Court. In my respectful opinion, it would not be realistic to conclude that the Judge’s assessment of these aspects of Mr Green’s evidence did not also influence his consideration of whether PKCT had discharged the s 361 onus.

570    For these reasons, I consider that this part of the proposed appeal should succeed, and the findings that PKCT contravened s 340(1) and s 346 of the FW Act set aside. The finding of accessorial liability against Mr Green should be set aside for the same reasons. There should be a retrial of these aspects of the applicants’ claims, if they are to be pursued.

The orders for reinstatement

571    With respect to the proposed appeal against the orders that Mr Giddings and Mr Rosewarn be reinstated to their employment with PKCT, I agree respectfully with the reasons of Jessup J at [270]-[283] and do not wish to add to them. The proposed appeal against the orders for reinstatement should not succeed.

Disposition of the application for leave to appeal and the appeal

572    I respectfully agree that the orders proposed by Jessup J are appropriate, and with his reasons at [284]-[287] for those orders.

573    In these circumstances, it is unnecessary to determine the applicants’ submission that leave to appeal should be granted only in respect of those of the 39 grounds which were addressed in PKCT’s outline of submissions.

Associate:

Dated:    5 August 2016

SCHEDULE OF PARTIES