PN1

VICE PRESIDENT CATANZARITI: Yes, good morning, I have on the Bench with me, Mr Commissioner Bissett and Commissioner Wilson. I'll take the appearances, Mr Williams.

PN2

MR D WILLIAMS: Yes, thank you, your Honour, and members of the Full Bench. My name is Williams, initial D. I'm a solicitor with Minter Ellison, seeking your permission to appear on behalf of the appellant in these proceedings. So, this is in relation to permission has been exchanged, I think there's still a requirement for the matter to be dealt with. I don't understand it to be objected to by Mr Walkaden, and I can make brief additional submissions if required.

PN3

VICE PRESIDENT CATANZARITI: Thank you. Mr Walkaden.

PN4

MR A WALKADEN: Yes, good morning, your Honour. It's Adam Walkaden here for the Mining and Energy Union, appearing on behalf of each of the respondents, and in answer to your question, no permission for the appellant to be legally represented is not opposed, your Honour.

PN5

VICE PRESIDENT CATANZARITI: Thank you. Permission to appear is granted. This matter is listed for a full hearing. The Full Bench has had the opportunity to consider the material and read the exhaustive material that has been presented. It's also the same Full Bench that's heard the background of the material, it being the Bench that remitted the matter to Commissioner Riordan. The Bench is of the view that the issue - there's no need to address us on the issue of permission to appeal. It is a matter that does seem to attract permission, so we should focus on the merits of the appeal. So, I'd like Mr Williams to focus your attention pretty squarely on what we need to deal with today.

PN6

MR WILLIAMS: It does, thanks, your Honour, also short and considerate. Your Honour, obviously, I'm mindful that, as you say, full and written submissions have been exchanged and in both cases, I think we travel beyond the guidance of Tim Page and so, I won't press my luck by repeating anything and I'll deal with matters of emphasis only. But it is an important matter and there are some matters which I do wish to address. I would be content at any time, your Honour, and members of the Full Bench if it appeared I was making submissions which were not helpful to you, then I'd wouldn't be at all offended if you asked me to move on. But subject to that, I have some few matters of emphasis.

PN7

VICE PRESIDENT CATANZARITI: Rest assured, Mr Williams, we'll shout out if need to.

PN8

MR WILLIAMS: Yes, I have no doubt about that; I just wanted to overtly make the invitation. Your Honour and members of the Full Bench, as of course you know, the matter has a long history. I want to briefly refer to the framework for one point only. As of course will be known, in accordance with section 395, if a dismissal was a case of genuine redundancy, then by definition, the employees have not been unfairly dismissed. In that case, the applications couldn't succeed.

PN9

Genuine redundancy is defined of course, and that's the central point in the appeal, and by section 396, the Commission is required to deal with the issue of genuine redundancy first. So, it's been explained to me by another Full Bench, that it's perhaps not quite to be referred to as a jurisdictional issue, but certainly a threshold issue, and that's why - that's how the parties proceeded.

PN10

Now, the Commissioner's first decision was overturned by a decision of - not this Full Bench, but a Full Bench as currently constituted, and in doing so, the Full Bench determined that the Commissioner had not addressed the correct test in section 389, that being of course, whether it was reasonable in all the circumstances for the applicant to be redeployed. That included, because firstly, based on the evidence before him, the Commissioner had not been put in a position to address the relevant issues, including skills and expertise.

PN11

But more critically, it was accepted that although one of the matters relevant to the Commissioner's determination was whether it was feasible for the work to be insourced and then allocated to some or all of the applicants. That was one element of one aspect of the test. Clear guidance was given to the Commissioner, that the issue of whether it was reasonable to insource the work in the first place for the contractors, was not itself, the enquiry.

PN12

The matter was found to be attended by errors including those, and the matter was referred to Commissioner Riordan. Now, that was an orthodox decision of the Full Bench, in circumstances, where one of the issues identified by that Full Bench, was that the Commissioner had not had before him, the appropriate evidence, in some cases, to properly discharge his function. It had made perfect sense and it was in accordance with orthodox principles for the matter to be referred to the Commissioner.

PN13

However, it did create a situation where Commissioner Riordan was being asked to deal with the matter afresh, however, in circumstances where he had already found that he was not satisfied that the redundancies were genuine. That was because he found that there were reasonable redeployment opportunities related exclusively for the key contractors. Now, the Commissioner was given guidance in relation to the proper exercise of the discretion and our overarching submission today is that with respect to the Commissioner, he did not take advantage of that guidance, and in fact, it is evident on the face of his reasons, as well as some of the evidence which, if it becomes appropriate, I'll take you to, that once again the Commissioner did not discharge the statutory task required by section 389. He failed to apply the correct test and he fell into, essentially, the same error, as he had fallen into in the first decision.

PN14

Essentially, in our submission, he returned once again to the more limited enquiry as to whether it was reasonable to insource the work from the contractors in the first place. In fact, members, he strayed further back in time on this occasion, to an enquiry as to whether it was in fact reasonable in the case of the need for the work to be outsourced in the first place. That was a decision which he made some time before the relevant events and quite unrelated to them.

PN15

So, the test that the Commissioner applied, in our submission, this is our over-arching submission, was one which was focussed on the precise enquiry that the Full Bench had said was not the correct enquiry. That is, whether it was reasonable (indistinct). Now, in pursuing that enquiry, the Commissioner firstly adopted and then gave significant emphasis to one issue, namely whether the contractors were properly to be described as specialist contractors and that in the course of that analysis, also to consider, as he was required to do, in accordance with the guidance, whether or not the displaced workers had the relevant skills, which would allow them to be allocated to that work.

PN16

Now, that of course was one matter identified by the Full Bench that is relevant to an enquiry as to whether, at the threshold, it was feasible to insource the work, but it was not the test under section 389(2). Secondly, members, what the Commissioner did, and I might be emphasising this in my oral submissions, is that on any fair reading of his reasons and some parts of the evidence which we've referred to, is he considered some of the relevant circumstances, but plainly did not consider all of the relevant circumstances. In relation to the circumstances he did consider, he did so, not for the purposes of evaluating those circumstances in a balanced way to decide whether it would have been reasonable in the circumstances, for the applicants to be redeployed, but rather he relied, in some respects, on erroneous findings. We have an appeal ground in relation to erroneous findings.

PN17

Once again, I'm going to substantially rely on my written submissions, but in our submission, he did rely on some erroneous findings, and in several cases, and this is a relevance opinion, which was not justified on the basis of the evidence before him, to set those considerations, such as he did consider them, to set them aside, as matters which did not need to be given any weight and could be set to one side for further consideration, and then to leave the field clear for what he did, which was an application of the test which was akin to that of whether it was reasonable to insource the work.

PN18

Now, with respect to the Commissioner, he set aside in that analysis, without proper consideration, and in some cases with no consideration, a number of circumstances which militated quite strongly against the finding of reasonableness. As I said in some respects, and as we submit, didn't consider them at all. The consequence of that approach and the authorities that we refer to, appellable error is established. Put very simply, the Commissioner did not apply his consideration to the application of the test in section 389(2). He applied a different consideration and a different test and although it's not completely straightforward to discern the elements of that test, and it's a matter of debate between Mr Walkaden and I what that test was, in our submission, it was plainly not the test required by section 389(2).

PN19

Now, you've relieved me from the task of making further submissions in relation to permission to appeal, and particularly in relation to the public interest. But I do make the point and I'll move on very quickly from it, that this is an important matter and it does need to be dealt with. We know from previous decisions (indistinct) of course, the prior Full Bench decision, that hitherto, although it seems one study is now including by the previous decision, that contract workforces are not precluded from consideration. But strong statements have been made and approved to the effect that positions cannot be created where there are none, and displacing occupants from positions is generally not appropriate. Those statements have been made very specifically in the context of the very consideration of contractors and an application made on the basis that they ought to have been displaced.

PN20

Now, this decision stands for different proposition, that is, if it's feasible, to insource and therefore to create roles, those roles must be taken to represent reasonable redeployment opportunities for the purposes of section 389(2), almost per se, and as we will submit, irrespective of whether there were other powerful reasons before the Commission that they would not be reasonable. I might say including in relation to Mentser, the maintenance of an employer's critical safety strategies.

PN21

So, this decision rather turns the orthodox thinking on the issue on its head. If it stands, it's difficult to see how other employers would not conclude that in these circumstances, the only substantive reason to be considered, is the nature of the work and the skills of the employees concerned. That is not the test, and the Commissioner's approach to it defies the way that the issue has been dealt with in the other matters today, including matters - of course matters before the Commission today.

PN22

So, if that is the correct explanation for how section 389(2) operates, then the business world should find out in a clear and decisive way, through the decision of the Full Bench, but of course, we urge upon you the different result. That is, that the approach is wrong and it's just not wrong, at least not as a discretion, but it is a product of appellable error.

PN23

VICE PRESIDENT CATANZARITI: Mr Williams when we are dealing with this, can I ask you to focus how far you say that goes, because part of your submissions talk about the managerial prerogative of out-sourcing.

PN24

MR WILLIAMS: Yes.

PN25

VICE PRESIDENT CATANZARITI: Are you saying that wherever - are you going so far as to say if there is an out-sourcing, there can never be redeployment under this section?

PN26

MR WILLIAMS: No, your Honour, I can't say that, because the Full Bench's guidance in its previous decision in this matter, makes it clear that, and not accepting a submission of mine, that the initial contractors is a relevant consideration. However, I think I would put it this way, in the (indistinct) decision from Senior Deputy President Lawrence drew from other authorities to set some principles, and one of those principles was that roles should not be - roles cannot be created if they don't exist. And another principle is that occupants should not be displaced from positions. Those comments were made specifically in the very context of the submission about this issue, that is, displacing contractors. Those comments were essentially approved on a pure intention and they form part of this Full Bench's reasoning, or at least its guidance rather, in the first instance, and there's been reference in other cases as well, notably the Brown decision.

PN27

So, although our submission is that it's not available for me to say in-sourcing should never be considered, but we do need to bring it back to - we need to be very clear about what that means. Those statements, made as they were, in the context of the very discussion about displacement of contractors, must be taken to mean that to insource, it is to create roles which otherwise do not exist, because those roles would not exist, apart from the decision to insource.

PN28

I can't suggest they would never be relevant, but if those principles are correct, and they were expressed in a qualified way; they were expressed in a reasonably unqualified way, then it would almost never be reasonable or required for an employer to insource roles from a contractor, in order to create roles which otherwise did not exist.

PN29

Now, I can certainly see the limited circumstances where in an out-sourcing situation such as this, it may be that because of particular circumstances at the time that there are roles created or vacant perhaps, or in the contractor's workforce, for where there's a situation where part of the work that the contractor is doing is on the facts available, without further in-sourcing for allocation to those roles. So, if that could be done without displacing an occupant, then it wouldn't have been the principle which had previously accepted in this Commission. But if it requires the in-sourcing of a role, the displacement of an occupant, that is a contractor/employee, and thereby the creation of a role which would not otherwise exist, then my submission would be that that would almost never, and I hesitate to say never, but almost never lead to a finding that the employer had failed to take advantage of a reasonable redeployment opportunity.

PN30

So, I think that's what we can say about it, your Honour. The answer is I can't make the submission that it could never be a situation that would lead to a reasonable redeployment opportunity, but it most certainly in circumstances such as this, where in accordance with prior strategies of the employer, the work has been outsourced, there is no proposal on the employer's part to insource the work, that is apart from the - that the restructuring has not caused the employer to reconsider the out-sourcing. There are no vacancies, there certainly was no evidence of vacancies in the contractor workforces and that it is the intention of everyone concerned that those contractors remain in place and the people they employ will remain in their roles. We say that the proper approach could almost never be defined that creating roles by in-sourcing would be reasonable.

PN31

So, that's the best way I can answer your question, your Honour.

PN32

VICE PRESIDENT CATANZARITI: Yes, thank you.

PN33

MR WILLIAMS: So, I turn now - as I say, there would seem no need to say more about public interest, I'll turn to the grounds of appeal, and my approach will be to focus on two of the grounds of appeal, only in oral submissions. That is the first one, which is the primary one related to a test, which we say the Commissioner applied. Then I want to say - come briefly to the submission we make in the fifth ground of appeal, which is that, at least in relation to Mentser, that there was a - we submit we're actually in Wensbury territory, so I'll have to come back to that one, because that might be thought to a courageous submission, but I think one which is absolutely justified on the facts in relation to Mentser.

PN34

But the first ground of appeal relates to the test and the obvious place to start is - - -

PN35

VICE PRESIDENT CATANZARITI: Mr Williams, just before you go on, your assistant is typing away. Unfortunately, the typing can be picked up and is quite noisy when you speak.

PN36

MR WILLIAMS: I'm sorry, yes your Honour, that's a thing.

PN37

VICE PRESIDENT CATANZARITI: Is it?

PN38

MR WILLIAMS: It turns out that he left it very close to the - I think on my decision - we are being recorded, there will be a transcript.

PN39

VICE PRESIDENT CATANZARITI: Yes.

PN40

MR WILLIAMS: There's not a need to take comprehensive notes, so I think we'll just put our pencils down, or the computers down.

PN41

VICE PRESIDENT CATANZARITI: Yes, thank you, because we just - it's affecting your delivery.

PN42

MR WILLIAMS: We don't want that, your Honour, so we'll put that away.

PN43

Now, we understand the approach the Commissioner took, in our submission, that the most relevant part of his reasons will be those which appear under his conclusion in paragraph 99, but we accept Mr Walkaden's submission, to help his submission, that the Commissioner's decisions should always be dealt with in the context of his full reasons. In that regard, the other part of his decision which is likely to be relevant under his heading of Consideration, and that commences at paragraph 66. So, we'll go to both of those in a little detail.

PN44

But commencing first with conclusion, it's under a heading of conclusion, so it's perhaps logical to treat that as the part of his reasons where he attempts to tie together what test he was applying and his conclusion in relation to that test. Paragraphs 99 and 100 are not of much assistance and were not relevant, rather. So, paragraph 101 the Commissioner made a comment which we would characterise as opinion that contractors are used to supplement the permanent workforce to provide specialist skills which are not available from the permanent workforce. So, that is not, in my experience at least, the only circumstances where contractors are used. We would characterise that as opinion, although opinion coming from a member of a specialist and expert tribunal, but perhaps incomplete.

PN45

Also at paragraph 101, the Commissioner recorded that he was not satisfied that Nexus or Mentser work was exclusively of a specialist nature. That's a finding which we say, in our submissions, was in error, but I won't say much more about that now. He said nothing additionally, in paragraph 101 or under conclusion, about the many other issues which have been dealt with by Peabody witnesses, and I'll come to some of them, which explain Peabody's own decision for not choosing to displace the Mentser workforce. They were of course asked to, in consultation, and choosing not to further displace the Mentser's workforce.

PN46

The Commissioner did not record under his conclusion or consider those many matters, although as I come to, there are some references of these two in his consideration. Now, relevant to both contractors, and these are matters which should have been dealt with in his conclusion, they include benefits which are associated with the allocation of a project, or project work or specialist work for a contractor, making that contractor responsible for quality, management risk and safe and effective supervision, allowing Peabody to focus on its directly employed workforce and that means also, not just as workers, but its managers and its supervisors to focus on that work. Of course with Mentser, the proper considerations include that the Mentser outsourcing had proceeded as a safety strategy, as much as anything else in resolution of safety concerns.

PN47

Now, these are matters which were plainly circumstances which were relevant, and they weren't mentioned at all, at least in the Commissioner's conclusion. At paragraph 102 the Commissioner expressed a number of other opinions and views, largely that they were opinions, in relation to the Mentser training program, and that was in pursuit of a determination be made that Ms O'Brien, the original Peabody witness Ms O'Brien, that her description of Mentser as a specialist contractor was wrong; he simply found that was wrong. But the entire focus of that paragraph was the issue of whether or not Mentser was a specialist contractor and this is, of course, what we say his singular focus was.

PN48

Paragraph 103, the Commissioner expressed a number of additional opinions, the first one with respect, was a value judgment as to whether it was unreasonable and unfair as an outcome for Peabody to outsource responsibility for the conveyor belts to mention in the first place. So, that was an opinion in relation to an antecedent decision, that decision reflecting a coherent strategy of the employer which was, with respect to the Commissioner, both opinion and also irrelevant to the issue at hand, but it nevertheless appears prominently under his conclusion.

PN49

He then expressed another opinion to the effect that if management had treated the conveyor belts as an important function of the mine, dealt with the matter more diligently, the fire may not have occurred in the first place. I say it's an opinion because although there's limited evidence about that from Mr Withers in relation to the factors which had led to the outsourcing. There was absolutely no basis on the evidence for the Commissioner to make any kind of findings about the circumstances which had led to the decision to outsource. No basis for him to criticise as unreasonable and unfair the decision to outsource the maintenance and the outcomes of that decision. That decision was coherently explained by the Peabody witness and we say that was essentially an opinion.

PN50

Then we move onto next, 104, he again focussed on his finding which was the one of most interest to him, as to whether the work of Nexus was specialist work. He then found, as part of his conclusion, that Peabody's claim that Nexus was performing project work was incorrect, and again, we submit, that was a wrong conclusion. There was no proper basis or in fact, any evidence, to underscore that finding. All Peabody witnesses describe the work which had been left to Nexus as project work. In fact, in some cases, the cross-examination proceeded explicitly on the basis that it was project work. But the Commission found that it wasn't.

PN51

Firstly, that was we say, a mistake, which I'll say not too much more about. Secondly, it simply was not relevant to the enquiry, the proper enquiry. He went on to say at paragraph 104 that there was no easy identifiable reason to use his phrase, why the applicants could not be performing this work, and he pointed to the fact that they had skills and competencies which would enable them to do so. Again, we say, transparently, was the basis of his overall conclusion under section 389 and it was not the right test.

PN52

He expressed the view which we would also characterise as an opinion, and we say that because it wasn't based in any evidence before him, that they could simply work under the supervision of the local deputy and then another opinion, once again not based in evidence that I can find, that they could supplement the respondent's workforce in other areas of the mine on short notice and without issue. That matter had not been explored. There was some exploration that the deputies were available, but it certainly did not properly found the basis of a conclusion that that was at all a straight-forward issue.

PN53

Then finally at paragraph 105, we find the Commissioner has only identified a link, it was concluded at least, to the issue of what was reasonable. Once again, it was explicitly based on the criteria which he found had been identified and utilised by Ms O'Brien, and that is, the issue of whether the work was specialist. In paragraph 105, just in passing, members of the Full Bench, there's a reference to PN94, which I assume is intended to be a reference to paragraph 94 in the reasons. I think it's just to be noted, that's more likely to be a reference to paragraph 71 or 102. 94 doesn't seem to be the right one, but nothing much turns on that.

PN54

VICE PRESIDENT CATANZARITI: Yes, we acknowledge that.

PN55

MR WILLIAMS: Yes, thank you, your Honour. The Commissioner's use of the word reasonable in that paragraph was not and could not be taken to be an application of the test in section 389(2). It's not related to the issue of redeployment at all. The issue of reasonableness in that part of the reasons is linked only to the actions of the respondent in terminating the applicants and keeping the (indistinct). In other words, the reasonableness of Peabody's decision to insource, or not to insource. It won't be lost on any members of the Full Bench, that in paragraph 91 of the previous Full Bench decision, the reasonableness or otherwise of the current insourcing work with Mentser and Nexus is not the enquiry, required of the Commissioner.

PN56

That's why I say the Commissioner has not taken advantage, with respect to him, of the guidance which was provided. Additionally, in what so far as we can ascertain is the Commissioner's final and substantially only explanation for the reasons of his finding that he was not satisfied that the redundancies were genuine, having regard to the test, finding that there is a singular emphasis on one issue only, and that is whether in the Commissioner's opinion the work was specialist and again, as I said, although he focussed on the issue in slightly different terms in his first decision, to the reasonableness of the decision not to insource the work being carried out by the contractors. Now that is an error, and it's an error which has been perpetuated following the guidance from the Full Bench in the first decision.

PN57

COMMISSIONER BISSETT: Mr Williams, can I just check with you, back in paragraph 104, the Commissioner says that there's no identifiable reasons why the applicants couldn't be performing the work. Putting aside the issue of insourcing or outsourcing or whoever might be doing the work, can you take any issue with the Commissioner's findings with respect to the skills of the employees concerned?

PN58

MR WILLIAMS: Well, we certainly take issue with that finding that there was no easy identifiable reason why the applicant couldn't be performing this work. I think our position on - - -

PN59

COMMISSIONER BISSETT: My question is just from a skills perspective. So, I just wonder whether you take issue with the Commissioner's findings that he outlined at paragraph 92 with respect to each of the individuals?

PN60

MR WILLIAMS: We take - my client never proceeded on the basis that the applicants or some of them had the ability and the skills to pick up the contract work or some of it, with a reasonable period of retraining. My client does take issue with the unqualified and absolute statement in that sentence that there was no reasonably identifiable reasons why they could not be performing this work, and I point to - and because I'm answering your questions slightly out of sequence, I point to, for example, evidence from Mr Carter to the effect that in relation to the Nexus work some of that required concreting. The applicants - and many of them had done concreting. As Mr Carter pointed out, this was one thing to do basic concreting; it's another one to do concreting in accordance with a particular specification which is part of the design and works in a particular project. Mr Carter did not accept that all of the applicants or any of the applicants would immediately be able to step into that work. He didn't contend and we won't contend that skilled underground miners with appropriate supervision and training and experience would not, in time, be able to carry out that work, and that has never been part of our position. You will have seen, Commissioner, that although I was quite sparing in my cross-examination of the applicants about that issue.

PN61

In relation to the Mentser work, it's a little more complex, because the Mentser employees were specialist bulk technicians and they had been - all of them had undergone, to perhaps slightly different degrees, but they had all undergone specialist bulk technician training. Now, the Commissioner made some comments about the training which plainly we don't accept either, but the evidence was that there was a training program, and in that training program, among other things that were available only to them, and not to the applicants, they did polymer processing training which was clearly a specialist part of the training program, and that enabled them to understand the circumstances and the features of the belt from a systems and material point of view. There is no evidence whatsoever, that any of the applicants had undergone that kind of training, and not all, but most of the Mentser bulk technicians had.

PN62

So, we would not accept the Commissioner's statement - if to accept that mean that we would have to - we would accept that all of, or in fact, any of the applicants could step into all of the work being carried out by Mentser. We do accept that over time, and with training, some and perhaps most of the applicants could have stepped usefully into the work carried out by both contractors and eventually, obtained the skills, the training and the experience which would enable them to do it to the same level.

PN63

To answer more succinctly, Commissioner, we don't accept that that is an unqualified statement. We do accept that the applicants had skills and experience which would have been valuable and which would allow them to do some of the work immediately, which was carried out by the Mentser, and in a much more limited - and to a much more limited degree - sorry, for Nexus, and to a more limited degree, the Mentser work, because no doubt, I don't think anyone's suggested they couldn't do belt shovelling, and including that certain of the Mentser work was belt shovelling. But we don't otherwise accept that proposition, either from a skills point of view; certainly not from a practicality or feasibility or reasonableness point of view.

PN64

COMMISSIONER BISSETT: Yes, thank you.

PN65

MR WILLIAMS: Thank you. Now, I've dealt with the conclusion. Mr Warburton makes the good point, that firstly, re the reasons as a whole, and secondly, that the Commissioner's reasons are not to be interrogated by a fine tooth comb and not that every consideration has to be set out with perfect clarity, and we accept that. However, two of the decisions which Mr Walkaden has on his list and we have on our list, and the first one is Linfox and the other one was Baun or (indistinct) and (indistinct) Aboriginal Corporation. I won't go to the specific paragraphs unless you need me to. But they both make the point with some clarity that the reasons must at least demonstrate that the Commissioner has applied the correct test and must at least demonstrate that he or she has taken into account the correct considerations.

PN66

So, if that's evidence from reasons which are not perhaps fully articulated or perfectly articulated, then a Bench would not treat that as a reason for going behind it, but this is not such a case. This is a case where the reasons do not demonstrate that the Commissioner understood or applied the correct test, and they do not demonstrate that he's taken into account the correct considerations. I want to make that good by going back to the Commissioner's reasons under his heading Consideration, which is paragraph 68 - sorry, 66 I'm sorry. The first part of that is to record what the guidance of the Full Bench, or some of the Full Bench.

PN67

Paragraph 67 is a comment in relation to one aspect of the Full Bench determination. I won't say any more about that, but the submissions I wanted to make started at paragraph 68, and he did turn from paragraph 68 and following, to at least identify some of the matters which had been advised to him by the Full Bench as matters he should take into account.

PN68

But in my submission, when one reads the paragraphs, even amongst fairest possible and - the fairest and most generous way, his analysis was not directed to identify and then take into account appropriate consideration, whether those identified by the Full Bench or a couple of other ones. In our submission, what the Commission was doing was working through the list of matters which he'd probably been directed to take into account. But in this respect, not for the purpose of a fair-minded evaluation, but rather for the purpose of dealing with them to set them to one side and deny them relevance where they do not fit comfortably with this overall determination, that it was not reasonable for Peabody to not insource the work.

PN69

Now, paragraph 68, just to go through them very briefly, degree of control, plainly a matter which under the guidance, he needed to take into account. The Commissioner found in essence, that the respondent had absolute control over the work of those contractors. The Commissioner's finding was limited to the issue of theoretical contractual control and was not - did not refer to the issue which we say is at least at relevant, if not more relevant, and that is the day to day operational and managerial control over the contractor's work. There's no doubt that the Peabody employer had considerable contractual rights that it could exercise, and that's not uncommon, but the work itself was a genuine outsourcing in the sense that once outsourced, it was more or less exclusively within the control, supervision and management of the contractors themselves.

PN70

Part of their task, in fact, part of their accountability, was the supervision and management of that work. They took the risk in relation to quality; they took the risk in relation to defects and they were not subject to day-by-day direction by anyone from Peabody unless there was a problem which needed to be solved, resources which needed to be supplied, or a safety issue which needed to be dealt with and managed by Peabody in accordance with its own duties.

PN71

May I give you, without going to them, some particular transcript references. I'll just mention them with a brief explanation of what they're about. Mr Grennell is the witness from Nexus. At paragraph number 1664, which appears at page 307, he explained that not every Nexus employee has the skills and competencies to perform each and every task, but a lot of the jobs, as he said, were done in a team or crew environment and the skill sets combining collectively is what's required to complete the task.

PN72

So, obviously, it was for the contractor to allocate the skills and capabilities in order to complete the task which had been allocated to the contractor. PN1693, appeal book 310 explained that the Nexus employees work flexibly as part of collaborative teams, that is, Nexus teams, ensuring that the right skill sets are available for a particular task. At paragraph 1828, appeal book 322, a proposition was put to him that if they had any issues, that their first port of call would be the Peabody Deputy, and that was rejected by Mr Grennell. He accepted that if there was a safety issue that would be a case, but if it was in terms of process in which the contractor had been engaged, they would go through their own hierarchy, that is, the workers would contact the Nexus supervisor who was on site, on their shift. If that person was not available, they would contact the project coordinator who was commonly on shift or the project manager. They were all part of the Nexus hierarchy; they were not part of the Peabody hierarchy.

PN73

Paragraph number 1835, he confirmed that there was a Nexus supervisor on each shift, et cetera, et cetera and there was other evidence in Mr Grennell's cross-examination in which he firmly pushed away propositions which were put to him, essentially to explain or to ask him to accept that the Nexus work was under the control of Peabody, as much as it was under the control of Nexus.

PN74

The Mentser work, at least in the evidence I come to, the evidence was that it was handled in a self-contained way by the Mentser employees in two person, self-supervised crews, that is not supervised by Peabody, who carried out their work autonomously unless there was a need to consult a Peabody deputy in relation to a safety issue, or engage assistance from a qualified fitter. The evidence of Mr Adam, who was the Mentser witness in this regard, is at the appeal book at page 1188 and following in his statement, paragraphs 3 through to paragraphs 10. I won't trouble you with the citation of that evidence.

PN75

But suffice to say, that the evidence was that the Mentser work, it was a wholly outsourced task or task which was wholly within the control or the autonomy and the accountability of Mentser, or Mentser as the contractor. That included that they had proprietary training and proprietary software which Mr Abbott said was not available to anybody else, and certainly not available to Peabody. That is in the last paragraph of his statement, he made that clear.

PN76

So, I make that submission, or I point to this evidence in support of my submission, that the Commissioner's finding in relation to control, is at best, incomplete and not consistent with the totality of the evidence and he would refer that to bear rights under a contract, which was not to the point in circumstances where there was no proposal for Peabody to exercise any of those rights. The same may be said in relation to his consideration of length of contract. The Commissioner did make a mistake in relation to Mentser, but it's probably not, in itself, here nor there. I think three years instead of five years, or five years instead of three years. I wouldn't put to you that that was a significant error.

PN77

But the real point is that in respect of the length of the contract and the rights which Peabody had under it, there was simply no proposition on Peabody's part or the part of the contractors, that the work wouldn't go on, as it had. There's no proposal to make any change in relation to it. So, it's not a situation where it's already locked in that a contract is going to come to an end and in short order, and therefore an opportunity is likely to become quickly available. Or alternatively, where there's a contractor who's locked in for years, in which case there might not be a reasonable employment opportunity.

PN78

But we are in a situation where there was no proposal on behalf of any of the players and any of the parties to disturb any aspect of the work that the contractors were going to do, and that's a matter which the Commissioner did not refer to. The Commissioner distinguished the evaluation of the Commissioner distinctly in the respect that didn't quite answer the point, in our submission for the reasons I've stated.

PN79

Section 68(c), this is of some importance, or some particular importance, rather. The Commissioner referred to the respondent's business strategy and it was required of him, by the Full Bench guidance and other guidance that he deal with the respondent's business strategy, because it had already been established in more than one decision that it would ordinarily not be appropriate that an employer be required to completely dislocate a current business strategy. In my submission, none of the matters which are collected under subparagraph (c), engage at all, with Peabody's business strategy in relation to the outsourcing. That is, it's a heading, but then some findings or some observations which are not particularly relevant to the issue of strategy at all.

PN80

The first matter which might perhaps thought to be idiosyncratic to the issue of a different strategy, was that Peabody still contributed trade-qualified work to the conveyor belts as required. Now, there was some evidence about that, but with respect, that was a complete side-wind to the issue of the employer's strategy. There was then reference to the fact that previously, work had been performed by a mixture of operators and contractors, including that operators who had been undertaking the non-trade work. But again, with respect, that's not a reference to the employer's current strategy. If anything, it appears to be a reference to some dislocated elements of the previous strategy.

PN81

Then there's some reference to the file. Mr Withers and actually Mr Davey gave some evidence about the file as a catalyst for the engagement of the new Mentser strategy. But with respect once again, reference to the file was not to consider it for its true strategic significance, and that is according to the need for a review and different strategy to the one which (indistinct). Rather the Commissioner's purpose was to dismiss the strategy on the basis that in the Commission's opinion, a change in the culture of management was all that was needed. But that's an expression of opinion, but it really is an expression of opinion which transgresses, in our submission at least, it is a pretty clearly stated principle, that it is not for the Commission to step into the shoes of the employer and to critically evaluate either its current strategies, or in this case, its previous strategies.

PN82

It was an error for the Commission to do that. But in any event, it was also an error in the sense that the issue of the employer's strategy was plainly immaterial in consideration. Apart from stating the point, the Commissioner did not engage with the point, although there was much evidence from the Peabody witnesses, including Mr Carter and Mr Withers in particular, which explained with clarity the employer's strategy in relation to both the Mentser outsourcing and also the outsourcing of specific project work, non-core work to Nexus. The Commission has not engaged with it.

PN83

In relation to Nexus, he says, although in other parts of his decision he says otherwise, that Nexus was engaged to perform project work and he said some of it was specialist work. But at the end of that analysis, he concludes with a matter which was obviously upper front in his mind in the whole course of the whole proceeding and that is not all the work performed by Nexus was either specialist work or work of a project nature. That does not speak to the strategy of the employer in deciding to outsource that work to Nexus and deciding not to insource it in order to create re-employment opportunities. We say the Commissioner fell into error, because he was - by expressing these opinions in that paragraph. Apart from not engaging with the issue of strategy, he was firstly second-guessing legitimate managerial strategies, but also just as importantly, applying an opinion, rather than evidence. That was in error.

PN84

There's no reference under strategy to the rights which were given to Peabody under the contract. No reference to the flexibility which the outsourcing provided. No reference to the strategy of maintaining corporate action inhouse and allocating a non-core project to an appropriate contractor. No reference to risk allocation. No reference to accountability of quality which was assured by the contractor. No reference to the circumstance that both Nexus and Mentser self-supervise all of its work with highly qualified and experienced and long-standing supervisors. No reference to the ability which Peabody the employer had to turn the work on and off as required, which in the evidence of Grennell from Nexus, it had in fact happened on a number of times. These are all matters relevant to strategy. None of the matters in that paragraph are relevant to strategy.

PN85

Paragraph 68(d) does mention - - -

PN86

VICE PRESIDENT CATANZARITI: Just before you move on Mr Williams, aren't you really say that the considerations in that paragraph on strategy are not the considerations that were before him, so he actually hasn't dealt with, in the material in front of him.

PN87

MR WILLIAMS: Yes, your Honour, that's exactly what we're saying. We say that not only has he not engaged with all of those uses of strategy before him, but in fact that none of those matters are about strategy at all. They're about of other matter of particular interest to the Commissioner. So, in other words, we say he's misunderstood what is encapsulated by the concept of the employer's business strategy.

PN88

VICE PRESIDENT CATANZARITI: And your point is then, whilst referring to the decision is to be taken as a whole, when you take this decision as whole, you can't find that discussion about strategy at all; it's a bit of a (indistinct).

PN89

MR WILLIAMS: Well, that's exactly right; that is my submission.

PN90

VICE PRESIDENT CATANZARITI: Yes, thank you.

PN91

MR WILLIAMS: Under section 68(d), rights of third parties, there is mention of the rights of third parties, but once again with respect, the Commissioner has demonstrated by his analysis that he's not understood the relevance of the requirement in the Full Bench's comments in some other places, as to how the rights of third parties have to be balanced. Instead of accepting that the contractors had rights, or at least interests to protect, and certainly the employees of the contractors had interests to protect, and that they would have to be balanced, in effect, against the proposition that they should be displaced - it wouldn't necessarily mean they wouldn't be, but at least it would have to be balanced as a matter against displacement.

PN92

What the Commissioner has done has denied the relevance of the terms of the contract, which is one aspect of it. Denied the relevance of what rights are provided to the contractors. Denied the relevance of what commercial and procurement benefits were available to the contractors and their employees. Simply to essentially say that the rights of the contractors was irrelevant to his determination and appears that he made this conclusion, or came to this conclusion because of his conclusion that the Commission only had jurisdiction through the Fair Work Act and that didn't extend to the contractors.

PN93

That's just simply - it misses the point of how - what the rights of the third parties were and in particular, how they need to be balanced in his assessment, and what was reasonable. He's just said they were relevant. In other words, he's not given them any consideration at all and that was not a valid consideration of that particular circumstance, knowing the rights of third parties.

PN94

In section 68(e), despite the heading Qualifications of Employees. The Commissioner did not in that paragraph - and I'll explain what I mean by that. In that paragraph, he did not actually deal specifically with the qualifications of the Peabody employees which are a point of that particular circumstance. What he did was focus on another matter which had engaged his attention at many points through the decision and that is the issue of the training program. That is the skills - the qualifications, not of the Peabody employees, not of the Mentser employees.

PN95

The Commissioner said that he was unsure of the relevance of the polymer processing qualification. Now, that was - he gave us an opinion, it was unhelpful, but the Commission's expression of doubt in relation to the quality of the training, we say is a serious error, because the training, the value of the training and the quality had been clearly explained without any serious context by Mr Abbott, and as accepted by Mr Withers. But in any event, in that paragraph at least, the Commissioner did not give attention to the issue of qualifications of employees.

PN96

But I hasten to say that he did in other places give consideration to the issue of the skills and qualifications and experience of the employees and as I said in answer to a question from Commissioner Bissett, we don't quibble with the concept that some of the employees, and perhaps many of them, could do some, and perhaps even most of the work done by some of the contractors. I won't go back into that submission, but in subparagraph (e), the Commissioner's focus was not even on the qualifications of the relevant employees. There's no reference in subparagraph 68(e) to Nexus, for example.

PN97

Paragraph 68(f), the effect on the employees of contractors it displaced, and again, Commissioner, members of the Full Bench, I'm sorry, you will of course have read that and my submission is that again, the Commissioner misunderstood what the task required him to balance, the effect on contractor employees as one of the considerations, but he did not. He once again denies elements for the impact. He found, in effect, that in a situation like this, the interests of the contractor employees, for industrial reasons, which may be a combination of experience, expertise and opinion, should not be given the same weight, or any weight. That's not the point of the consideration.

PN98

Now, paragraph 68(g) is another one of some significance. The Commissioner attempted to deal with the principal acquisitions that already wanted to be created, but didn't exist. That was plainly about the development to (indistinct) Gardens. Also, the matter referred by the Deputy President in Ketteran and by the Full Bench and also by the Vice President in Brown v Claremont. Now the gravamen of previous deliberation on this point, at least as we understand it, and as we would think the business community would understand it, is that if there are situations where there was a stable contractor workforce with their incumbents in place, gainfully employed, doing all of the work which the contractor has been required to do, then that is a matter which will necessarily weight heavily against the conclusion of reasonableness.

PN99

It was inevitably to create redeployment opportunities in those circumstances, requires displacement of incumbent contractor employees and the creation of roles in the employer workforce where otherwise, they would not exist. So, it was a pretty important matter for the Commissioner to deal with. The Commissioner's consideration of that issue, apart from what the Deputy President had said in Ketteran, was irrelevant to the issue. Except to point that numerically, there were enough contractors employed to absorb all of the applicants. That's all he said in his analysis and consideration of this critical issue before him. That, we say once again, with respect, is not to deal with the issue, or rather deal with it in the most superficial way and not to engage with the real issue at hand according to previous guidance.

PN100

As I said, your Honour, in answer to your question, if there had been immediate vacancies in the contractor workforces, which the contractor didn't have someone on hand to fill, because the scope of work within the package which had been handed back at that very point, or in other circumstances where it was agreed by everyone, that it was convenient, for employees to be allocated to the relevant employees, then it might be a consideration where this particular circumstance, it would militate against reasonableness. But that's not our situation, and the Commissioner, with respect to him, did not grapple with it, in the way that was required of him.

PN101

Subparagraph (h) and (i), the Commissioner has referred to matters which were not, to my understanding, specifically referred to in Full Bench guidance. In relation to - under subparagraph (h) which the Commissioner described as the itinerant nature of contract work, the Commissioner refers to his own experience in working with contractors over the last 35 years. If you are accepting that this is an expert tribunal, it would generally be inappropriate and an error for the Commissioner to determine or being with part of his reasoning in a matter like this - his own experience, working with contractors, as he was, over a period of time.

PN102

A Commissioner should not bring his or her own experience, whatever that was, into a matter, in any circumstances, but certainly not when that experience is just not germane at all, to the matter at hand. He expresses opinions in relation to contractor work not being secure, casual employment being prevalent and these are matters of opinion. He goes on to say that for contractors, it's a difficult and unfortunate circumstance. He simply has not - he's brought to bear in the reasons or circumstances which he has personally identified as relevant, and that is which are of no relevance, and based on opinion, apparently based on his own experience before he came to the Bench. That's not - that's an error; it's not permissible.

PN103

68(i), the Commissioner did refer to the flexibility of contracts and that was a matter that perhaps, one of the best examples of a circumstance that the Commission has grappled with and accepted, in part at least, a circumstance which might militate against insourcing, or at least be relevant to the maintenance of the employer's strategy. But what the Commissioner didn't do, when he made the submissions, is refer to the other elements of this employer's strategy in outsourcing. In relation to the other matters that you're meant to be across - in relation to the Mentser employees, the Nexus employees, it's difficult to see how that's relevant to the issue of the flexibility of contracts. But I'm not entirely certain that was the Commissioner's intention or just additional content, perhaps.

PN104

Then from 69 and onwards, members, the Commissioner turns to a number of other considerations which he thought to be relevant. But one can see that he immediately returned again to the issue of whether or not the contractors are specialist contractors. That was plain and simple, was the Commissioner's dominant focus in the whole of the proceedings and in the previous proceeding. He recorded some evidence from the original witness, our respondent, Ms O'Brien, noted the evidence of Mr Withers and made a finding in relation to training which we have submitted in our written submissions were wrong. He said that was the principal reason why Ms O'Brien regarded Mentser to be a specialist contractor and I made the point in my written submissions that that was wrong. That was not the primary reason why Ms O'Brien had the opinion that the work was specialised. But in any event, Ms O'Brien, how she described it was not even faintly relevant to the matter before him.

PN105

I will in passing, but unless you wish me to, I won't take you to the particular references, make the point that Mr Withers who is the Engineering Manager with statutory responsibility, gave highly credible evidence as to why Mentser is a specialist bulk maintenance contractor. His evidence in his statement says that at appeal book 11191, the work was dedicated to not just bulk maintenance, but also work improvement, training, specialist software report to bear and then said he had engaged nobody, apart from specialist bulk technicians who either had the relevant training or were working towards it.

PN106

So, with respect to the Commissioner's finding about Mentser, it might be difficult to find a better example of a contractor who was genuinely a specialist, but that's not the point. The point is that the way the Commissioner did keep returning to the issue of whether or not the contractors are specialists, that wasn't the test. The Commissioner appears to have treated it as if it was the test.

PN107

He goes on at paragraph 72 to 79 to make some comments in relation to finding, that it wasn't quality training. I'll move pas this quickly, but with respect, there was no evidence, not a shred of evidence before the Commissioner which would have reasonably led to that view. It must be taken to be an expression of opinion. His approach to it emerged very early on in the second proceedings, and I'll give you some references there. Paragraph 75 - I'll do that in a moment, I'm sorry. Paragraph 75 he referred to the fact that training was provided on the job - there's certainly much evidence of that. But all he said about that was that training on the job was common place in the coal industry. But that doesn't deny either the quality of the training provided by Mentser or the fact that it was directed towards a specialist function.

PN108

More to the point, the difficulties associated with Peabody or Helensburgh taking over that training, that on the job training when they had no employees who could do it. They had no employees who were trained in experienced specialist bulk technicians. They had nobody who had done the specialist training. These are matters which were not grappled with by the Commissioner.

PN109

Paragraph 76 seeks best negative views in relation to Mentser's software program and he certainly expressed some strong and negative views bounded to my client's premises. There was no basis for those findings. Put shortly, the Commissioner had misunderstood that the point was not the program, he put to one of my witnesses that a third year engineering student put together a maintenance program and possibly that's true, and possibly one could have been bought off the bench if no third year engineer was available.

PN110

But the point was in accordance with the evidence of Mr Abbott, that the program that they had, had in it with data sourced over thousands of hours of experience in specialist bulk technician work. That certainly wasn't available in Peabody. That would not have been available to Peabody upon insourcing, and the Commissioner glossed over that and he glossed over the very significant loss of capability and knowledge, knowledge management that insourcing would have required of Peabody.

PN111

He expressed opinions about the information which a Deputy might gain by walking the belt and providing an inspection report, but with respect, the evidence was that the Mentser bulk technicians worked on the belts every day, or trained and experienced to observe and rectify problems in real time, was on the evidence, a Deputy walked the belt once or twice a shift. The Commissioner's dismissal or his finding with the conclusion that Peabody could get the same level of service from an insourced function with a Deputy doing the inspections was just not available to him.

PN112

On the final section of 76, paragraph 76, he referred to the software program, but I've made my submissions about that. Paragraph 77, which was still, once again or in relation to, or under the heading of that Mentsers was a specialist contractor, the Commissioner criticised Peabody's focus on the conveyor belt, and that was an opinion, as I said, based on highly incomplete evidence. Mr Withers stated some evidence of his own frustration with the previous strategy, but Mr Withers didn't criticise anybody. He just said that the strategy one way or another, had not led to the outcomes that he felt the organisation required. There was no basis for a finding that Peabody or some people within Peabody, unidentified people, did not have an appropriate focus on conveyors.

PN113

But in this passage, the Commissioner did unconsciously, perhaps, make an observation which was relevant, or at least should have been relevant to his consideration and that is that Peabody had specifically responded to a circumstances where an existing strategy had not delivered the right results in relation to efficiency or safety and on some of the evidence cost, and had deliberately adopted a different strategy, in this case a strategy of employing a specialist contractor. The Commissioner criticised that decision. It wasn't a proper basis for him to do it, and as we submitted, it wasn't for him to contend that standing an issue with Peabody, it should have persevered with a strategy which the responsible managers, had decided was not the right strategy, including for the purposes of occupational health and safety management.

PN114

Their concerns which had led to the decision that the existing strategy was not appropriate, was a decision of (indistinct) competency or training for employees, it may be right. It's a little bit hard to see how he could have made that unqualified finding, but even if it was true, it adopts, rather than denies our position that Peabody had responded to a situation which required a different strategy.

PN115

Paragraph 79, the Commissioner's reasons as we put it, really betray the approach which he took to some of these issues, and particularly Mr Wither's evidence on the value of the reports. He said that Mr Withers was very enthusiastic about photographs - I'm sorry, about the Mentser reports because they had pictures. He went so far as to say there was no evidence whether the Deputies were operators, whether they'd been asked to take photos. That was, put in useful terms, an entirely incomplete and unfair encapsulation of the evidence which Mr Withers gave about the value of the Mentser's report. I'll just give you the reference, the only place that we can see he touched upon pictures at all, was at paragraph no 2052 in the transcript. I have a court book reference and I'll get one for you. But when I looked at that, he doesn't show any particular enthusiasm about the pictures; he mentions them, but it wasn't - plainly it wasn't the particular reason that Mr Withers thought the reports were of value, and far from it, a fair reflection of the evidence.

PN116

It really betrays, in our submission, that the Commissioner was never going to accept - was determined not to accept that the value provided by Mentsers in his training, its supervision, its reports, its preventative maintenance and the like, was of sufficient value, in fact, any value which could not be provided displaced Peabody employees. But there was much evidence to the contrary, and the Commissioner's findings were either opinion or without proper basis.

PN117

Now, paragraph 82 and 83, the Commissioner's report was total evidence given by Mr Withers. Paragraph 83 he expressed his view that Mr Withers had a problem with anyone questioning his decision about (indistinct) to Mentsers. Two comments about that. Firstly, it was not for the Commissioner, with respect to him, to criticise or to go behind the decision to outsource the conveyor belt to Mentsers and whether questions of Mr Withers or otherwise. That was a decision made by Peabody, it exercised its prerogative and he explained that in his decision in a very coherent way.

PN118

But secondly, I just want to give you some references to the evidence which led up to Mr Withers' very colourful comments which was extracted. Mr Withers did have a moment where temporarily, he lost his cool, and he made some inappropriate statements to the Commissioner. But may I invite the Full Bench, as it becomes at all relevant to the determination, to follow the cross-examination of Mr Withers, of which his cross-examination, may I say was both by Mr Walkaden, in the legitimate exercise of his function, but also by the Commissioner, in what we say was somewhat beyond that proper exercise of his function. Commencing at paragraph number 2052 at appeal book 342.

PN119

Mr Walkaden asked some questions and I give that evidence to you, because Mr Withers firmly and coherently explained the basis for his preference and for the need for outsourcing and his significant concern at the proposition that the interests of the (indistinct) would be served by it being insourced again. But commencing at paragraph number 2288, the Commissioner commenced a lengthy period of questioning of Mr Withers. He started both by making the proposition that in relation to loading, he said something like loading is, in view of hoping that a third year engineer could do. Mr Withers answers that as best he could. Mr Withers accepted a proposition that the engineer of the department could have undertaken that. There was no exploration as to whether that was a good idea (indistinct) much evidence that it was no.

PN120

At paragraph number 2302, the Commissioner put a submission to him later, was an incomplete and misleading proposition about the value of the Mentser training program. That was a reference to one small aspect of the training program which was the inhouse training. He put it in a reasonably assertive way. At paragraph number 2309, at appeal book 364 to 365, he put another proposition to Mr Withers which was in respect of (indistinct) of evidence - to this effect, that he was surprised that the overall majority of them, that is the Peabody people, had very detailed competencies in relation to the conveyor belts - there was no such evidence. Mr Withers responded correctly that he knew that none of them did. But the Commissioner's question of Mr Withers was unfair, by reference to the evidence before him.

PN121

He put down at paragraph number 2310 a proposition in relation to a particular employee. In my submission there was no basis for the example, but Mr Withers rejected it - he rejected the proposition that was put to him. At paragraph number 2317, appeal book 365, Mr Withers clarified his evidence in relation to (indistinct). He gave his opinion which was correct, which was that the classroom (indistinct) given to was foundation (indistinct) prominent feature of the claim.

PN122

At paragraph number 2319, appeal book 365 to 366, the Commissioner said this:

PN123

So, I'm not able to comment that the Mentsers training is anything more than what I described in my first decision as mickey mouse training. Do you agree with that?

PN124

The witness said I would like to think not. At paragraph number 2320, the Commissioner said:

PN125

I'll take that as a yes.

PN126

It plainly was not a yes. The Commissioner's approach to questioning the witness was not to gain relevant information which may not have been provided to his satisfaction in either the witness' evidence or the witness' cross examination to that point. The Commissioner's purpose was to deny both the accuracy and the relevance of the evidence which had been given, including by Mr Withers, without proper basis.

PN127

It went on at paragraph number 2323, there was a suggestion to Mr Withers that Mentser was in breach of contract because Peabody said it was provided them services. No basis whatsoever for that proposition. It continued with a number of similar unusual propositions, including about fairness that Peabody's not subtract tradesman's labour associated with the Peabody cross. Mr Withers struggled with these questions and any witness would have.

PN128

He continued at paragraph number 2335, paragraph 2338, which best would appear in relation to the quality of the - of the function carried out by Peabody employees which was not available. At paragraph number 2338, a lengthy question which was a pretty good indicator of the Commissioner's approach to the issue, with respect to - it was no more than an opinion. Then Mr Withers, by that stage was - must have felt somewhat under siege and possibly couldn't understand why that was occurring. But he held very strongly to his view that the Mentser outsourcing was an unnecessary strategy to achieve a safe working environment in circumstances where the catalyst for the strategy had been an underground fire and the relevant statutory inspector had found that in his opinion in Peabody's approach was in breach of the accommodations. At paragraph number 2344, Mr Withers finally lost his cool, but in his defence, he had suffered what might be described as unjustifiable criticism and propositions which were not fair.

PN129

There was re-examination. Mr Walkaden in his submissions says that Mr Withers fought back from his evidence in re-examination, and I don't know if it's the most significant point of the case, but I guess a concern about that, I commend to the Bench the re-examination commencing at appeal book 370, paragraph number 2358, where I cornered Mr Withers give your evidence in relation to training and in relation to the software package which the Commissioner, in his recently aggressive questioning of the witness, had not referred to. That was the first thing for the witness to do, we will not accept that Mr Withers walked back his evidence in any way. Mr Withers gave his evidence in a straight-forward way, he defended his propositions. In some respects, he was not cross-examined in a fair way.

PN130

The Commissioner turned to the issue of whether Nexus was a specialist contractor under the heading on page 31 paragraphs 87 and following and I'll deal with this quickly. The issue of speciality, which he referred to as accepted by the Full Bench to be relevant of course, to the issue of feasibility but wasn't the test to be applied. But nevertheless, that was the focus of the Commissioner's analysis. He didn't make any finding that Nexus - despite the heading, he made no finding that Nexus was a specialist contractor, but he did make findings as to whether the applicant had skills to carry out some of the work; the was relevant, though I will make the point that some of the work being carried out by Nexus will defend as specialist. Mr Grennell, in particular was firmly of that view.

PN131

Mr Carter did have some difference of opinions on different parts of it, but he certainly referred to the issue of concreting as a specialist task, and he defended staunchly the value at which Peabody outsourced the project work to Nexus. I commend Mr Carter's evidence for that detail. It commences at the appeal book at page 372 at paragraph number 2386. Mr Carter gave straight-forward evidence which would in effect, some of the written specialists, some of it was not. Some of Peabody's employees could carry out some of the tasks. He did not accept that that would be all of them. He made the obvious point that it would take time for them to get as competent and as efficient as the Nexus employees.

PN132

But in any event, the principle issue in relation to Nexus was made the Commissioner, was not that all of its functions were specialist and Peabody never contended that it was. The issue was that it was project work which had a finite duration. It was not core work and which had been outsourced to a contractor as a non-core function in circumstances, where as I've submitted, a contractor became contractually accountable for the quality of the work and the supervision of the work and the safe operation of the work.

PN133

I might say that a numerous points in the cross-examination, under some pressure, Mr Carter emphasised that despite the Commissioner's finding, that Nexus work was project work and made the point that in one part of the Commissioner's findings, he appeared to accept that as well. He referred to the ability for the value to Peabody to be able to research it and slow it down, change the timing. He made sense in relation to that project within the overall operation of Peabody's mine. I give you the reference 385, paragraph number 2481, 2482 and 2483 where Mr Carter firmly rejected the idea that it would be in any sense a seamless transition if Peabody was to insource it.

PN134

Paragraph number 2488 at appeal book 386, 387, he speaks to equipment that Nexus had that Peabody didn't. At paragraph 2507, appeal book 389, he referred to the need that there was a resourcing for Peabody to procure additional equipment which it did not have. He made the point that it would be at a higher cost and it would be less efficient. These matters are not given any prominence in the Commissioner's reasons.

PN135

Now, I mentioned briefly at paragraph 92, that the self-assessed skills and competencies of the applicant, but did not say much more about this. But there was reason to contend that, as I've said, some of the work carried out by Mentsers was within the basic skill set of some of the applicant and perhaps all of them. But without proper attention to all of the other factors, not just feasibility, all the other factors referred to and which as we've submitted, the Commissioner's analysis was, with respect, incomplete.

PN136

In summary therefore, the Commissioner's approach needs consideration to draw his conclusions, was not to address, in a genuine or balanced way, consistent with the statutory task, whether there was a reasonable redeployment opportunity available. Rather, what we say, he was at pains to do anything about proper consideration, but was to systematically deny relevance and inappropriately and without proper basis, deny relevance with the factors which had been identified by the Full Bench and addressed by Peabody in its evidence and its submissions. As I said, the matter which appears to have caught his eye and that was the issue of whether the work was specialist and whether Peabody applicants might be able to, in theory, take it over. That was threshold issue, but not the test.

PN137

Now members, in relation to ground two which is the considerations which we say the Commissioner should have taken into account but didn't. We also make submission about which ones he did take into account, and some comment as to whether that was taken into account in the proper way. I know we tested your patience in relation to the length of the written submissions. I'm not going to say anything more about that unless there are questions, except to refer to annexure A as containing our submissions.

PN138

Similarly, in relation to the errors which we say and then on three, sorry, ground four, refer to annexure B. The question arises in Mr Walkaden's submissions as to whether the error was significant. But one comment about that. We understand the word significant to be not a - the question is whether there is a very bad mistake or one which was wholly justified. But rather, whether the errors were significant to the Commissioner's determination and if they were significant to the Commissioner's determination, they were significant. We say all of the errors should be significant to the Commissioner's determination. Some of them in themselves may not have been big matters or important matters, but they were significant to the Commissioner's determination and for the reasons we've expressed in annexure B, they were errors.

PN139

I will conclude, apart from answering questions, of course, by saying something about our final ground which is that in relation to Mentser, the Commissioner has strayed into an error which would almost, per se, be identified as an appellable error, even if there were not - they could not be otherwise found in the reasons discernibly, an error of approach. The circumstances which we say lead to that consideration or that conclusion, are those which are set out in paragraph 5.5 of our written submissions. Now, I won't repeat them. I confidently expect that you read and considered them. But I make the point that if there was ever a situation where an employer had a proper basis to change its strategy from an insourced strategy to a specialist outsourced strategy, it existed in relation to the belt maintenance and improvement function at the Metropolitan underground mine. They have suffered an underground fire and in the opinion of the inspector, and the responsible manager Mr Withers who gave evidence, the previous strategy had led to a situation where Peabody was probably in breach or may have been in breach of its statutory obligations. We all agree with that, in terms of risk to the organisation, risk to the individuals in responsible positions and of course, the safety of where the work was concerned.

PN140

For that reason, and also for the other reasons we set out in paragraph 5.5 which we think are made out in our submission of the evidence. For the Commissioner to make a finding that it was reasonable for Peabody to, in effect, be required to abandon that strategy and return to a strategy which it had reasonably and for good reason, decided had been a failed strategy, which had led to a situation where the work was being done in an unsafe way, was so unreasonable, such an unreasonable result, that it could not have been an exercise, a proper exercise of the Commissioner's discretion within the restrictions of reasonableness which apply or should be inferred, given that the statute, either section 389, let alone, or read in the context of the division or the legislation as a whole, would not have contemplated that a Commissioner would require that fundamental and profound change to employer strategy, given the circumstances where there was a significant safety issue involved.

PN141

The case, your Honour, members of the Bench which I've referred to is the High Court decision of Minister for Immigration and Citizenship v Li & Anor which is a case which considered essentially putting context in the Australian jurisprudence, the relevant understood principle in the Goonsbury case which is an (indistinct) decision. May I, in terms of my references in that decision, take you to the decision of his Honour the Chief Justice French, commencing at paragraph 23 on page 106 of that bundle, where his Honour deals with the issue of reasonableness as an error, or a ground of identifying error. As he said in paragraph by reference to the R v Anderson; Ex parte Ipec-Air Pty Ltd:

PN142

a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion;

PN143

I've made a number of submissions, the effect of which is that the Commissioner brought private opinion into some of his critical findings and that's an error, as this decision identifies. Then he refers to the paraphrasing in Sharp v Wakefield:

PN144

according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself.

PN145

Plainly it belongs to the competence of the Commissioner at first instance, but I do make the submission that the decision, at least in relation to Mentser, possibly, arguably in relation to Nexus as well, but certainly Mentser, strayed outside that statutory test of reason. His Honour the Chief Justice went on in paragraph 25 to elaborate. In paragraph 26 he says:

PN146

The rationality required by 'the rules of reason' is an essential element of lawfulness in decision-making. A decision made for a purpose not authorised by statute, or by reference to considerations irrelevant to the statutory purpose or beyond its scope, or in disregard of mandatory relevant considerations, is beyond power.

PN147

Now that, returning back to the submissions I've made, we submit that each of those trip wires has been well and truly tripped. There is nothing, for example, in the statutory - in the purpose and the place in the statute of section 389(2) which would justify a finding of the gravity and profundity that the Commissioner made, at least in relation to Nexus.

PN148

At paragraph 29 his Honour made the point by reference to another High Court decision of Kruger v The Commonwealth that is a statute confers a decision-making power which contains unreasonableness, then you should construe it on the basis that an essential condition resides with that power is that it be exercised reasonably, at least in the sense that it not be exercised in a way that no reasonable person could exercise it.

PN149

I say, and I'll say this briefly, take your Honour and members of the Bench to the decision of a plurality, Justices Heydon, Crennan, Kiefel and Bell, on the same topic, commencing at paragraph 65. (indistinct) Suffice it to say that they're consistent with the comments made by the Chief Justice, and I do make the point at paragraph 68, when the plurality is progressed, (indistinct). That (indistinct) principle may be taken to recognise that an inference of reasonableness may in some cases by objectively drawn even where a particular error in (indistinct) not be identified.

PN150

I formally make the submission that even if you found that there was no discernible error in approach to the application of test and of course, it's not our submission, but if you did, in relation to Mentser at least the result would provide a strong inference that the Commissioner had not approached the exercise of his discretion was within the bounds of reasonableness as required. There's more useful commentary at page 70, 71 and reference again to inferences at paragraph 76, which is of some assistance.

PN151

But apart from - members apart from leading, as I said, the issues on the grounds that I've not referred to in detail to my written submissions, those are the submissions I want to make. Naturally, if you have questions of me I will endeavour to answer them.

PN152

VICE PRESIDENT CATANZARITI: Thank you. Any questions Commissioner Bissett?

PN153

COMMISSIONER BISSETT: No thank you.

PN154

VICE PRESIDENT CATANZARITI: Commissioner Wilson?

PN155

COMMISSIONER WILSON: No thanks, Vice President.

PN156

VICE PRESIDENT CATANZARITI: Yes, we'll take a short 10 minute adjournment.

PN157

MR WILLIAMS: Thank you, your Honour.

SHORT ADJOURNMENT [11.29 AM]

RESUMED [11.39 AM]

PN158

VICE PRESIDENT CATANZARITI: Yes, thank you, Mr Walkaden.

PN159

MR WALKADEN: Thank you, your Honour. I'm going to start my submissions by making a very brief point, noting that the Full Bench has already decided to grant permission to appeal. Before engaging with each of the five grounds of appeal, I just want to put this application in its proper context. The submissions I wish to make are as follows: that this decision is the exercise of the Commissioner's discretionary evaluative judgment. It's a decision that was made based upon its own particular facts on the case that was before the Commissioner.

PN160

The decision does not stand for any broader principle in respect of the redeployment of employees to positions that are occupied by contractors. There is no precedent value attached to this particular decision because, as I indicated, the line of authority starting from the Honeysett v Ulan case - which I refer to in my outline - going back to 2010 has quite clearly established that interpreting section 389(2) it requires the member to decide the case based upon the facts before it. That's what the Commissioner has done in this particular circumstance.

PN161

Contrary to what Mr Williams suggested in his opening remarks, this case doesn't provide any great big principle or any flashing headlights to employers in respect of insourcing or outsourcing in the context of redeployment. The case will stand and fall on its own particular facts. In approaching the matter, in my respectful submission, the Full Bench should determine whether there is error with the Commissioner's decision and go no further.

PN162

In my respectful submission, given that section 389(2) empowers the member at first instance with the exercise of a discretionary evaluative judgment and in circumstances where it has been well established - and I've explained this in my written outline - that there are no binding principles that can be applied in each and every instance where the member at first instance is exercising their discretion in respect of an application concerning section 389(2) of the Act, the Full Bench should go no further than deciding whether there is error with the Commissioner's decision and then deciding what to do about any such error. That's the first opening comment I wanted to make.

PN163

The second opening comment I wish to make - and I'll come to this in a bit more detail - is the appellant's criticism that the Commissioner was too focused, or the decision is heavily focused upon the question of the respondents' below skills. That is expressed in the decision as a question as to whether the Nexus and Mentser contractors had specialists skills, but also it has given some considerable consideration in the decision as to the respondents below's own skills clearly in answer to the question as to whether the respondents below either had the skills to do the work that was outsourced to Mentser and Nexus or could do that work with a period of reasonable retraining.

PN164

The reason why that issue of skills loomed large in this case wasn't because the Commissioner got distracted or went off on a frolic of his own on that question. That issue of skills loomed large in this case because that was one of the central bases on which the appellant below prosecuted its objection. The appellant below didn't prosecute its objection by resort to a right to manage. That wasn't the central basis on which the objection was prosecuted below.

PN165

The appellant below didn't prosecute its basis as BHP did in the Pettett v Mt Arthur Coal matter, which is a decision of Hatcher VP of a couple of years ago, where in that case BHP in circumstances where the appellant workers represented by a union were arguing they should be redeployed to truck driving roles performed by labour hire contractors - BHP in that case prosecuted its objection on the basis that it would cost too much. It would cost too much to re‑train the displaced permanent employees vis‑a‑vis the redundancy payments.

PN166

That was not the objection that the appellant prosecuted below. In large part the objection was prosecuted on the basis of skills, on the basis that the Mentser belt cleaners - and I use that word to make it plain to the Full Bench that there may be some confusion about what Mentser work we are talking about. The redeployment opportunities that the respondents below pointed to and which the Commissioner was focused upon was what was described as the two‑man crews. Those are the employees that in very short summary perform what may be described as belt cleaning/belt maintenance.

PN167

The discussion about the Raven software is a red herring because that is an employee who is known as a belt inspector but who performs - and that person is a Mentser employee - a twice weekly inspection at the Helensburgh Coalmine. The redeployment that was argued in this case was to the two‑man - and it is sexist language, but it is the two‑man crews. It was not to the belt inspector function and it is that belt inspector who is not, to use the lingo of the coal industry, performing a statutory inspection because that is a function exercised by a deputy who is employed by Peabody performing a statutory inspection of the mine. Rather, the belt inspector is a different person who conducts an inspection of the conveyor belts, the conveyor belts being the plant which gets the coal, transports the coal out of the mine to the surface. It is the belt inspector who uses the Raven software that was spoken about.

PN168

As I say, with that level of explanation the reason why skills - both the skills of the Mentser belt cleaner/belt maintenance employees as well as the Nexus employees, and the respondents below - loomed large in this case was because (1) that was a key basis on which the appellant below prosecuted its case, but moreover that was a factor that the Full Bench in the first appeal specifically directed the Commissioner to consider in conducting the rehearing.

PN169

Mr Williams has taken the Full Bench to paragraph 69 of the first appeal where the Full Bench as presently constituted explained there would be a range of factors that the Commissioner would need to consider. Those considerations have been explained by Mr Williams. Then over at paragraphs 86 and 87, the Full Bench in the first appeal explained some further circumstances that the Commissioner should have regard to in conducting the rehearing. Then over at paragraph 92, the Full Bench indicated that a deficiency of the case in the first instance was a level of specificity as to the skills of the respondents below was not properly before the Commissioner.

PN170

Now, the parties took the comments of the Full Bench on board and that is why on the rehearing each of the respondents below gave evidence as to their skills - and I'll explain this in a bit more detail when I come to it - which is something that didn't occur and was pointed out to be a deficiency by the Full Bench in the first appeal.

PN171

I just want to make that second point quite clear that skills loomed large not because the Commissioner was off on a frolic or got distracted, skills loomed large because that was one of the primary bases on which the appellant prosecuted its objection below, but also that was a relevant matter that the Full Bench said should be addressed on rehearing. Those are the two opening comments I wish to make.

PN172

Addressing each of the grounds of appeal I obviously rely upon my written outline and in particular, as it concerns ground 2 and ground 4, I don't propose to engage in the long list of factors that the appellant raises in ground 2 and ground 4 because we would be here for a few days. I'm content largely to rely upon my written outline to deal with those matters and my overarching submission as it concerns in particular ground 2 and ground 4 is the Full Bench does not need to dig into the detail in respect of those long list of issues that are raised by the appellant, but I'll address that in respect of each ground.

PN173

VICE PRESIDENT CATANZARITI: Yes, thank you, Mr Walkaden.

PN174

MR WALKADEN: Thank you, your Honour. Now, turning first to the first ground, ground 1, the error that is alleged here is an error of principle. It is said by the appellant that the Commissioner failed to apply the test required by section 389(2) of the Fair Work Act. The correct application of section 398(2) is not in doubt. The correct application has been discussed in my written outline, tracing the application of section 389(2) from the first Full Bench of this Commission which was constituted to consider section 389(2); namely the Honeysett v Ulan Coal Mines case.

PN175

As I have explained in my outline, there have been a series of Full Benches since Ulan which have consistently expressed that section 389(2) requires the decision‑maker at first instance to exercise their discretion. It requires an evaluative judgment on the part of the decision‑maker where there are no binding principles, in that the decision‑maker at first instance must consider and weigh the relevant circumstances, the exercise of their discretion and the question posed by section 389(2) of the Fair Work Act.

PN176

As I explained in my written outline, the appellant's contentions as to ground 1 are incredibly weak. It's an artificial argument where the appellant seeks to read only part of the reasoning. Mr Williams has hedged his bets on that issue in his submission and has said, 'Of course you must read the decision as a whole.' If one reads the decision as a whole, as I've explained in my written outline, ground 1 simply falls away because notwithstanding Mr Williams' comments in his oral submission this morning, ground 1 - and I refer the members of the Full Bench to the appellant's submissions, paragraph 1.1(b), which reads:

PN177

Instead the test applied by the Commissioner, which can be taken to be surmised in paragraphs 101 to 105 of the second decision, was to the effect that having found that insourcing the work was feasible, paragraphs 95 to 96 of the second decision, the overarching test to be applied was whether work of the relevant contractors was specialist.

PN178

In the appellant's written submissions it's plain as day that the essence of ground 1 is an artificial focus upon what is found from paragraphs 101 to 105 of the decision. Effectively, the second proposition is that there is some sort of overarching test, to use the language of the appellant, that the Commissioner applied. Neither of those two propositions can be sustained. As I explained in our written outline and as Mr Williams accepted this morning, the reasons of the Commissioner are not simply found at paragraphs 101 to 105 of the decision.

PN179

In my written outline I went through the Commissioner's reasoning from, I think, paragraph 68 and pointed out the various headings and subheadings that the Commissioner applied, and just very briefly do so. Paragraph 66, we see the heading 'Consideration' and what follows is the Commissioner extracting relevant paragraphs from the Full Bench in the first appeal. At paragraph 68, as Mr Williams has taken the Full Bench to, the Commissioner considered each of the factors identified by the Full Bench.

PN180

Now, whether the Commissioner made an error in respect of each of those factors is a separate issue. That is not an issue that relates to ground 1 because, remember, ground 1 is said to be an error of principle. If there is an issue with a factual finding that was made at paragraph 68 - we say there wasn't - that's a matter that should be considered under another ground and I will address that in due course, but the point is does paragraph 68 form part of the Commissioner's reasoning? The answer is yes. Then at paragraph 69 there is a heading above that, 'Other considerations', and the words in paragraph 69 read:

PN181

There are a number of other considerations which I believe to be relevant in this matter as follows -

PN182

and then from paragraphs 70 to 98 the Commissioner considered a range of factors. As Mr Williams has explained, above paragraph 99 is the heading 'Conclusion'. Now, in response to the first proposition I explained a moment ago we make the very straightforward point that when one says where are the Commissioner's reasons for the decision, one doesn't just look to paragraphs 101 to 105 of the decision; rather, one looks to paragraphs 68 to 105 of the decision.

PN183

When one does that, the appellant's ground 1 falls away and that is because the Commissioner hasn't just considered this alleged overarching test where the Commissioner only considers specialist work and the feasibility of insourcing; rather, when one has regard to the totality of the reasons, the Commissioner considers a range of reasons including those matters that the Full Bench said he should consider on rehearing.

PN184

In answer to ground 1 - namely, has the Commissioner acted in accordance with principle, has he considered, taken into account, a range of relevant factors, weighed them up and then in the exercise of his discretion answered the question posed by section 389(2) - the answer is yes and that's enough to dispense with ground 1. An argument about the weight that the Commissioner placed upon certain factors - if it was said that the Commissioner placed too much weight upon questions of specialist skills or feasibility - that is not an error of principle. That is an issue within the Commissioner's discretion, so ground 1, for those reasons, does not disclose an error of principles.

PN185

As I pointed out in my written outline, what the appellant doesn't do is the appellant doesn't explain why it plucked paragraphs 95 and 96 from the decision but ignored the remaining paragraphs from paragraphs 68 to 98. That makes no logical sense as to why one would do that. Why give greater prominence to two paragraphs from paragraphs 68 to 98 in those circumstances? The only explanation for that of course is that the appellant sought to pluck those paragraphs to construct an argument that there has been an error of principle.

PN186

As I said at the outset a consideration as to whether the work of the contractors was specialist work, it's not surprising that that featured prominently in the decision for the reason I've explained. It was at the core of the appellant's argument below and also a matter, as I explained, that the Full Bench in the first appeal said the Commissioner ought take into account; so it's hardly surprising that that is a matter which was given some prominence in the Commissioner's decision. Indeed, when one turns to paragraph 86 of the first appeal, the Full Bench said in the first and second sentence:

PN187

In determining if it was reasonable in all of the circumstances for the employees to be redeployed into work performed by contractors the Commissioner would, by necessity, need to consider if the work performed by contractors could be performed by employees – in this regard the Commissioner would need to have regard to the skills and training of the employees concerned and consider this in some appropriate manner against the skills required in the work of the contractors. In this respect whether the contractor work was 'specialist work' is a relevant consideration to the extent of such a skills assessment.

PN188

With those comments from the Full Bench ringing in the Commissioner's ears, it's no wonder that the question of specialist skills received considerable attention in the discharge of the Commissioner's evaluative judgment. Likewise, it's also not surprising that the Commissioner carefully considered the feasibility of insourcing the work. If I draw the members of the Full Bench's attention to paragraphs 95 and 96 of the decision, in the first line of paragraph 95 you will see the Commissioner directs his mind to the question of whether it's feasible. He says:

PN189

I am of the view that it is feasible for the respondent to insource some of the work of the contractors.

PN190

The first sentence of paragraph 96 of the decision:

PN191

I am also satisfied that it is feasible that the work of the four two‑man Mentser crews could be insourced.

PN192

It's unsurprising that the Commissioner was concerned about the feasibility of insourcing given that is the same language which is featured in paragraph 86 of the first appeal, where in the final sentence of paragraph 86 the Full Bench says:

PN193

We consider that in making the assessment he did the Commissioner was required to consider and balance, in addition to the nature of the work, the feasibility of insourcing that work from the employer's perspective.

PN194

So it's hardly an error for the Commissioner to have regard and, in our view, perfectly understandable for the Commissioner to place greater emphasis upon the feasibility of insourcing given those comments from the Full Bench which was ringing in his ears. For those reasons, what we say is the there is no error disclosed in ground 1. The Commissioner's reasoning considered as a whole involved the Commissioner considering a range of factors and weighing those factors up.

PN195

This overarching test is language that if you search high and low through the Commissioner's decision you will not see a reference to an overarching test. That is not language deployed by the Commissioner. That is a term introduced by the appellant once again to construct an argument that there has been an error of principle.

PN196

As I've explained, if the essence of ground 1 is that the Commissioner gave greater weight to questions as to whether the work - the contractor work - involved specialist skills or whether insourcing was feasible, if it be said that those are issues that the Commissioner gave greater weight to, that does not disclose an error of principle. What that discloses is that in the exercise of the Commissioner's discretionary evaluative judgment he gave greater weight to those two factors than other relevant factors and he is entitled to do so within the ambit of his discretion. Those are my submissions, Vice President, in respect of ground 1.

PN197

In respect of ground 2, ground 2 is expressed as a failure to consider or, alternatively, appropriately consider a long list of relevant circumstances. As I've already explained, in our respectful submission it's unnecessary for the Full Bench to carefully consider and - as I think I explained in the first appeal - to get into the weeds in respect of this long list and determine whether the long list was considered either at all or appropriately.

PN198

We can deal with the alternative argument quite quickly and that is it will only be a House v the King error if there has been a failure to take into account a material consideration. The alternative basis on ground 2 - namely, that there has been a failure to appropriately consider relevant circumstances - is not a House v the King error. That is an argument about weight. It follows that any of the factors in the appellant's long list as it relates to ground 2 where the complaint is a complaint that that particular factor wasn't appropriately taken into account, can be readily dismissed. There is no error if that is what - - -

PN199

VICE PRESIDENT CATANZARITI: No, I think Mr Williams goes further than that. He is saying that some of these factors - not only were they not taken into account, but had they been taken into account it would have been a material difference.

PN200

MR WALKADEN: Yes.

PN201

VICE PRESIDENT CATANZARITI: Now, that's quite a different point to House v the King, one. That traverses really his other points where he has drawn us to the High Court authority and, you know - so he is putting the bar very high. I'm not necessarily saying I agree with it, but I understand his point.

PN202

MR WALKADEN: Well, I will deal with ground 5 which really goes to the question you raised there, the second House v the King basis where we talk there about is it one of these rare cases, et cetera. I'll deal with that in due course, but ground 2 as I understand it at least from reading he notice of appeal, is expressed in an alternative basis. So if you have regard, Vice President, to the notice of appeal you will see ground 2 reads:

PN203

Having failed to apply the correct test the Commissioner failed to identify or, alternatively, failed to appropriately take into account -

PN204

et cetera, et cetera, et cetera. Now, I'm going to engage with the primary basis on which ground 2 is advanced; namely, that there has been a failure to identify and take into account relevant circumstances. I'm going to come to that, but at this point in time I'm just dealing first with the alternative argument which is clearly put as being there has been a failure to appropriately take into account a range of circumstances.

PN205

In the appellant's long list you will find that there are some circumstances where the appellant says were not taken into account at all and those matters fall within the appellant's primary submission as it relates to ground 2, but there are some other factors where - and I've identified those numerically in my written outline - the appellant says, 'Yes, they were considered, but they weren't appropriately considered.'

PN206

As I said, I've numerically identified those in my written outline. I think there are eight from memory, there are eight of the 18 - sorry, nine of the 16 as it relates to Mentser where on the appellant's own analysis they were considered but not appropriately considered, and on the appellant's own analysis there were eight of the 18 circumstances that on the appellant's argument were considered but not appropriately considered.

PN207

So we're not talking about an insubstantial number of factors as relates to ground 2 and I make the very simple point that the alternative contention on which ground 2 is based - namely, there has been consideration of a factor but the extent of consideration by the Commissioner was not appropriate - I'm making the very straightforward proposition that that is not a House v the King error because that is an argument about weight.

PN208

We know the House v the King error that may relate to ground 2 is a failure on the part of the decision‑maker to take into account a material consideration, which is to terrain the first basis or the first argument as it relates to ground 2 is made, and I'll come to that right now. I'll deal with that first point right now. I refer the Full Bench to the High Court decision in Minister for Aboriginal Affairs v Peko‑Wallsend Ltd, which is in my bundle. I think it was tab 5 of my bundle.

PN209

VICE PRESIDENT CATANZARITI: Yes, just give us a second to get that on the screen, Mr Walkaden.

PN210

MR WALKADEN: Yes, your Honour.

PN211

VICE PRESIDENT CATANZARITI: Yes, we have that now, thanks.

PN212

MR WALKADEN: Thank you, your Honour. Now, I draw the Bench's attention to the reasoning of Mason J, which on my bundle is page 110. I think that's the relevant passage I'm referring the Full Bench to, which is paragraph 15 of Mason J's decision. At paragraph 15, Mason J discusses the principles to be applied in determining whether an administrative decision‑maker exercising a discretion conferred by statute either fails to take into account a relevant consideration or, alternatively, takes into account an irrelevant consideration.

PN213

The principles that are articulated which I am particularly focused upon is the principles which are found at (a), where Mason J says:

PN214

The ground of failure to take into account a relevant consideration can only be made out if a decision‑maker fails to take into account a consideration which he is bound to take into account in making that decision.

PN215

I obviously rely upon the entirety of paragraph 15 of this decision, but I draw particular attention to the words that follow (b) where his Honour continues:

PN216

What factors a decision‑maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion.

PN217

We don't have to worry about the sentence that follows for the present purposes, but the sentence thereafter:

PN218

If the relevant factors - and in this context I use this expression to refer to the factors which the decision‑maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act.

PN219

So those are the principles, in my respectful submission, that must be applied in determining whether a factor is a material consideration that a discretionary decision‑maker is required to take into account. The principles that I have just explained set down by Mason J in Peko‑Wallsend in determining in particular whether a particular consideration is a material consideration, had been repeatedly applied in the Fair Work Commission. For example, you'll see a reference to that at paragraph 77 of the Wollongong Coal v CFMMEU case, which is found at tab 2 of my bundle.

PN220

They're the principles. They're the principles that are to be applied in determining whether a relevant circumstance - to use the appellant's language - is a material consideration. Of course if the Commissioner failed to take into account a material consideration, he has committed a House v the King error. Our point is quite simple: on application of those principles articulated by Mason J in Peko‑Wallsend, ground 2 must fail. That is because the discretion conferred on the Commissioner by section 389(2) of the Fair Work Act is unconfined.

PN221

None of the relevant circumstances - and I'm using the appellant's language - identified by the appellant in ground 2 can be said by implication from the subject matter, the scope or the purpose of the Fair Work Act - can they be said to be a material consideration. Therefore, even if it was true - and we say it's not for the reasons I've explained in my outline where I say that the long list of the appellant's relevant circumstances were largely taken into account - so even if it was true though for argument sake that none of those factors were taken into account, there is no error because none of those factors on application of the Peko‑Wallsend authority were material considerations that the Commissioner was required to take into account.

PN222

At best, given the unconfined discretion of section 389(2) of the Act and in circumstances where the Commissioner was conducting a rehearing following the first appeal at best, we would accept that the Commissioner was required or should have taken into account those matters indicated by the Full Bench. So I'm prepared to go that far and I do say that in circumstances where the first Full Bench made a number of observations, which I've taken you to at paragraph 68 as well as Mr Williams, the issues about feasibility, insourcing skills, where the Full Bench was careful to express those observations as being matters that the Commissioner may need to take into account.

PN223

Notwithstanding that understandable hesitation on the part of the Full Bench in directing the Commissioner that he must take certain factors into account given the unconfined discretion conferred on him by section 389(2) of the Act, I'm prepared to say at best that the Commissioner was required to take into account those factors identified by the Full Bench at, for example, paragraphs 69, 86, 87 and 92 of the first appeal. It is apparent from a preliminary reading of the decision that those factors were taken into account.

PN224

The appellant might not like the outcome that was arrived at. Members of the Full Bench may have arrived at a different conclusion themselves, but that's not the test as we well know. The test that we're concerned about here is of those material considerations of which at best those material considerations are the factors that were pointed out by the Full Bench in those paragraphs I've referred to - the question is did the Commissioner take those factors into account and the answer is he did.

PN225

Once again, if there is an argument - and there appears to be - about whether those findings contained errors of fact, well, that's matter we can talk about with respect to ground 4. If there is an argument that the conclusion was so unfair and so manifestly unjust, that's an issue we can discuss in the context of ground 5, but ground 2 is a simple point; namely, did the Commissioner take into account all material considerations? The answer is he did and, as I've explained, the Full Bench doesn't need to delve into the appellant's long list of what are described as relevant circumstances because, as I've explained, none of those relevant circumstances can properly be considered to be material considerations.

PN226

The approach I'm urging on the Full Bench is entirely consistent with the way that the Commission and the courts have explained the Commission's duty to give reasons, which is why I've included - I can't pronounce it either - the Bargain decision which, Vice President Catanzariti, was your first of the year I think, in my bundle at tab 3, as well as the Full Court in the Linfox decision which I won't trouble the Full Bench with; they will be well known.

PN227

The approach I'm suggesting is the correct approach accords with that well known set of principles that we all know, that it's not necessary for a member of the Fair Work Commission to refer to each and every piece of evidence, and each and every contention. The size of the appeal book indicates we covered a lot of ground in respect of these applications. The applications concerned 24 dismissed employees where we're now onto the second rehearing.

PN228

Each of those respondents below gave evidence, as did four witnesses for the respondent, and there were detailed submissions both in writing and orally given by the advocates. So, to suggest that the long list - there has been some error because a point wasn't considered or wasn't raised flies in the face of not only the approach I'm urging the Full Bench adopt with respect to what is a material consideration, but also the Commission's well established principles in terms of its decision‑making capacity. For those reasons that submission should be sufficient to dispense with ground 2.

PN229

While I'm dealing with ground 2, there are two points I want to address as it concerns Mr Williams' submission. This is a point that was raised by the Vice President which is the matter referred to at paragraph 68(c) of the Commissioner's decision; namely, the respondent's business strategy. Now, the respondent's business strategy was a factor identified by the first Full Bench at paragraph 69 as a factor that on rehearing the Commissioner might or should take into account.

PN230

There was some criticism of the Commissioner's reasoning at paragraph 68(c). As I say, if the argument is either ground 2 or ground 4 - namely, well, there might be the heading 'Respondent's business strategy' but in fact the Commissioner hasn't taken that factor into account - that submission can't be maintained. That's because one probably needs to dig into the details here to understand just what the Commissioner was doing at paragraph 68(c).

PN231

The context of the respondent's business strategy was the distinction drawn by Mr Carter at Peabody and repeated by the appellant below in its submissions about this distinction between 'core' and 'non‑core', which harks back to a clever political campaign by a former Prime Minister. It has shades of that sort of approach. There was core work and there was non‑core work, and Mr Carter explains in his written statement - at appeal book page 1237 - that generally speaking Peabody's business strategy not just at the Helensburgh Mine but also at Wambo and other mines it operates, is it likes a direct workforce for its core workforce but it contracts out the non‑core workforce.

PN232

That distinction between core and non‑core is also another way of expressing - expressed as a difference between specialist and non‑specialist work. You see that throughout Mr Carter's evidence in particular. So that's why, for example, in respect of the Nexus work, if you look carefully at paragraph 68(c) of the decision - and I'll come to it - that's why the Commissioner has focused upon the examples of whether the work is specialist work and uses the example of secondary support and gas pipe installation.

PN233

The respondent at ground 4 says there is an error there and I want to address that - spend some time dealing with that - but the short point for now is it's probably obvious from my written outline that the Commissioner made a finding that the gas pipe installation, the secondary support work performed by Nexus, was not specialist work. I'll explain the evidence to that point, but the point I'm making in the context of ground 2 is that by focusing upon those two examples in dealing with the respondent's business strategy the Commissioner did take into account the respondent's business strategy; this distinction between core and non‑core, specialist and non‑specialist work and that the respondent's strategy was to contract out this non‑core work or this specialist work.

PN234

The Commissioner is essentially saying, perhaps inelegantly, that the respondent's business strategy is not coherent. That's what he's saying at paragraph 68(c). There isn't this neat demarcation, as Mr Carter would have the Commission believe, between core and non‑core, because the evidence and Mr Carter's own admission in cross‑examination - not in his carefully prepared witness statement, by the way, but in cross‑examination - was that gas drainage work and secondary support was not specialist work.

PN235

VICE PRESIDENT CATANZARITI: In the statement of Mr Carter, core and non‑core I think is paragraphs 11 and 12. That's correct, isn't it?

PN236

MR WALKADEN: I'll just get the reference, your Honour.

PN237

VICE PRESIDENT CATANZARITI: Yes. What you're effectively saying is that's what he puts in the statement, but when one looks at the way the evidence was run below it's not as neat as what the statement says.

PN238

MR WALKADEN: That's true. That's exactly right. You're right. If you're on page 1237 you'll see - you're right, your Honour - that at paragraph 12(c) in particular Mr Carter explains secondary support installation as being non‑core work. When one reads his evidence as well as the appellant's submissions, the business strategy is, 'We're going to contract out non‑core or specialist work.' You've hit the nail on the head, your Honour, when one cross‑examined Mr Carter it became apparent that that neat demarcation did not exist between core and non-core.

PN239

As I say, the Commissioner perhaps inelegantly was alert to that by saying, 'Well, you say - Peabody, the appellant, says - there is this neat demarcation. Peabody says that they contract out secondary support work because it's non‑core work.' It turns out after some cross‑examination of both Mr Grennell of Nexus and Mr Carter of Peabody that secondary support work is basic black coal work. It's not specialist work, it's not non‑core work, it's basic black coal work.

PN240

That's why, as I say, the argument put in respect of ground 2 isn't at this point in time did the Commissioner make an error. Ground 2 concerns did the Commissioner take into account what may be considered to be a material consideration, because it's a factor the Full Bench said he should take into account, and the answer is he did. The Commissioner did take into account - as I say, maybe could have expressed himself a bit better, but he is basically making the point that the respondent's business strategy lacked coherence. That's the point he's making.

PN241

The same point can be made in respect of the Mentser work and that's why once again perhaps a bit inelegantly the Commissioner at the first sentence talks about the trade work. You'll see that there was a little bit of shadow boxing on the part of the appellant both at the first hearing and the second hearing about these, what I'm going to call - I'm going to use the language the two‑men crews, because that's the language that was used throughout the proceeding. They are also referred to as the multiskilled operators or the belt cleaner/belt maintenance people.

PN242

As I said at the outset, we're not talking about the non‑statutory belt inspector who conducts an inspection twice a week of the belts and uses the Raven software to do so. We are talking here, these two‑men crew, about employees who are allocated to a part of the conveyor belt which, as the members of the Full Bench might imagine, is a very long piece of equipment at the mine because, as I say, it conveys the coal which is cut deep underground to the surface.

PN243

These multiskilled operators who pick up a shovel - that's the majority of their work, they pick up a shovel - they, with the shovel, pick up the coal that has fallen off the belt and either clear it or put it back on the belt, for example, or they monitor the rollers. That's the sort of work we're talking about here. As I say, there was a bit of shadow boxing on the part of the appellant, both in the first hearing and the second hearing, to try and suggest that these Mentser multiskilled operators were fitters, that they were doing trade work.

PN244

There are references in my outline where I ask Mr Withers - as a fitter himself and in charge of the fitters, being a mechanical engineer - that, 'A fitter is a fitter, isn't it?' He says, 'It is.' That's why the Commissioner was making the point in the first sentence - as I said, he maybe could have expressed himself a bit better, but he was making the simple point that these Mentser employees aren't fitters. If fitting work is to be done on the belts, these Mentser employees don't do it. They call a Peabody fitter to do the work and that's the point that the Commissioner was making about the business strategy.

PN245

It's not the case that the maintenance of the belts has been outsourced, which is what you might think on having a superficial read particularly through the written materials filed by the appellants. One would think that the Peabody employees don't touch the belts at all, but it wasn't, as I say, until cross‑examination in particular exposed the fact that the Peabody fitters still maintain and perform fitting work on the belts.

PN246

That just goes, as I say, to the point I made before that the Commissioner in answer to ground 2 did consider the respondent's business strategy but, simply put, didn't think that business strategy or the stated reasons for the strategy were coherent. That's my submission with respect to any criticism that the respondent's business strategy wasn't taken into account. It was, it's just the Commissioner had difficulty accepting that that strategy was coherent and that that strategy was a barrier or would make insourcing infeasible, to use the language of both the Full Bench as well as the Commissioner himself.

PN247

Another point just briefly I want to touch on in relation to ground 2 is the matter of 68(e), which is the qualifications of the employees. Now, a little bit is made about the AQF3 polymer processing qualification. I don't want to go through it in great detail, but the question is was that taken into account? The answer is it was.

PN248

Just jumping to it, if there is any suggestion that the Commissioner somehow made a factual error, I just refer the members of the Full Bench to paragraph 42(d) of my written outline where I deal with that issue about the AQF3 qualification - I've included the references to the evidence - where that qualification was not a mandatory requirement for holding the position, but, more importantly, at the time that we are concerned about - namely, when these redundancies occurred which is almost two years ago, in July of 2020 - only a minority of the Mentser employees, the two‑men crews, actually held that qualification.

PN249

As I say, superficially you might think, well, these respondents don't hold the AQF3 and all these Mentser multiskilled operators, these two‑men crew, they've got this whiz‑bang AQF qualification. The reality is very different because, as I've explained, only a minority of the Mentser employees concerned actually held that qualification.

PN250

More importantly - and I'll just remind the Full Bench of my submission on a similar note at paragraph 42(p) of my outline - in cross‑examination of Mr Withers, staying with these Mentser employees, the evidence of Mr Withers in cross‑examination was that a couple of those Mentser employees had never worked in a coalmine before. Moreover, the evidence of Mr Abbott, who was a senior manager of Mentser, was at the time of the redundancies some of the Mentser employees were receiving training.

PN251

As I say, superficially one might take the view that these Mentser employees were these whiz‑bang, hotshot belt people, but, as I say, carefully going into the detail, peeling back the onion, reveals a couple have never worked in a coalmine before. As I say, the evidence - not on my witnesses, but of the company's witness this is - some of those employees were still receiving training. Only a minority held the AQF qualification that Peabody wants to points to in this case.

PN252

Moreover, the evidence in answer to the Full Bench's - calling it the first appeal for greater specificity - the evidence clearly showed that some of these respondents were more skilled in performing this belt work than some of those Mentser employees. That's not my evidence, that's the evidence of Mr Withers. I refer there to Mr Ken Dryden, who is one of the respondents to this case.

PN253

The relevant extract to the evidence there is found, as I say, at paragraph 42(p) of my outline, at PN2199 to 2201 where I'm cross‑examining Mr Withers and he makes that concession. With those further additional submissions about those specific matters that Mr Williams spent a little bit of time on at paragraph 68 of the Commissioner's decision, those are my submissions as it relates to ground 2.

PN254

In respect of ground 3, the alleged error there, it is alleged that the Commissioner failed to take into account the impact of insourcing on the contractors and their employees, so the House v the King error that the appellant alleges appears to be the same error as ground 2 relates to; namely, an alleged failure to take into account a material consideration.

PN255

I repeat my earlier submissions about what a material consideration is and acknowledge that at paragraph 69 of the first appeal the impact of insourcing on contractors and their employees was a factor that the Full Bench said may need to be considered. The simple response that I have is that there is no error because this consideration was taken into account and that is evident from paragraphs 68(d), 68(f), 68(g), 68(h), 68(i) and paragraph 94 of the decision.

PN256

Once again, if we're arguing about was there an error, we can discuss that in the context of ground 4 or was the result manifestly unjust, we can discuss that in the context of ground 5, but if we're talking about ground 3 - namely, was this a factor taken into account - the answer is it was. When one reads those paragraphs I have referred the Full Bench to, without the notorious appellant fine toothcomb, once again the Full Bench should be satisfied that perhaps - once again maybe not as elegantly expressed as others may have done - what the Commissioner was clearly doing is clearly appreciating at those paragraphs that someone would lose their job as a result of this restructure.

PN257

The Commissioner was basically saying arising from the restructure someone is going to lose their job and that's either going to be the respondents and the broader Peabody underground workforce - because not each underground operator is a party to this proceeding. There is a couple who chose not to. It's either going to be the permanent Peabody employees or it's going to be the contractors. That is evident from the first sentence of paragraph 68(f) of the Commissioner's decision where he says:

PN258

Unfortunately, the downsizing or restructuring of any organisation has an adverse effect on somebody.

PN259

It's a statement of the obvious; someone is going to lose their job. It's either going to be the permanent employees or the contractors and obviously maybe a bit of both, but that's the point the Commissioner is making. When one fairly reads those paragraphs that I referred you to, 68(d), 68(f), 68(g), 68(h), 68(i) and 94 of the Commissioner's decision, what the Commissioner was doing was weighing up the interests of the respondents versus the contractors with that consequence in mind; that as a result of Peabody's decision to reduce the number of workers on its site, that someone would lose their job.

PN260

The Commissioner weighs up the interests of those competing interests - the Peabody employees on the one hand and the contractors on the other - and in doing so that demonstrates that the Commissioner hasn't committed the error alleged at ground 3. Rather, the Commissioner has taken into account the impact of insourcing on the contractors and their employees.

PN261

As I say, maybe it could have been better expressed, but what the Commissioner's reasoning discloses is that the Commissioner preferred the interests of the respondents over the interests of some but not all of the contractors. That explains the findings that the Commissioner made at, for example, paragraph 68(h) where the Commissioner talks about the itinerant nature of contract work and also 68(i) where he talks about the greater flexibility afforded by the respondent to engaging contractors.

PN262

The second sentence of paragraph 68(i) is a dead giveaway; the Commissioner talks about contractors having 'the capacity to ramp up or down its workforce.' Now, what is the consequence of that, of ramping up and down its workforce? The consequence is the contractor loses their job if their employer or the principal - the Peabodys or the BHPs of this world - decides to ramp down.

PN263

The Commissioner is just expressing the reality of life and, as I say, maybe it's expressed in layman's terms, but basically the Commissioner is saying in those paragraphs if there is going to be a restructure somebody is going to lose their job and basically, for the reasons explained, he prefers the interests of the Peabody employees over the contractors.

PN264

Now, if you accept that is the Commissioner's reasoning - as I say, perhaps it could have been better expressed, but that's what he was doing in those particular paragraphs - that is a complete answer to ground 3, because what that demonstrates is it demonstrates that the Commissioner took into account the consideration that the Full Bench at paragraph 69 said he should - namely, the impact of insourcing on the contractors - and in the exercise of his discretion preferred the interests of the Peabody employees over the contractors.

PN265

The point I make is a simple one; that is an outcome that the Commissioner is entitled to reach in the exercise of his discretion, just as it would be and was the case that Spencer C in the Kestrel Coal decision that Mr Williams and I appeared in back in 2015, where she found against the employers I was representing then because she preferred the interests of the contractors over the permanent employees they were representing. Just as it was the case that Lawrence DP preferred the interests of the contractors over the permanent employees that my union was presenting in the Teterin case.

PN266

That is a decision that the decision‑maker at first instance is entitled to make in the exercise of their discretion. There is no error. We can argue about ground 5, about whether it's manifestly unjust, but if the question is was the consideration taken into account, the answer for the reason I've explained is it was. Those are my submissions in respect of ground 3.

PN267

In respect of ground 4, in ground 4 we find another long list of findings that are said to be either a significant error of fact, a finding made in the absence of evidence or of relevant considerations. As I've explained both in writing and at the outset today, it's unnecessary for the Full Bench to carefully consider each factor on that long list and that is for the simple reason is the onus - it's on the appellant in this case to demonstrate error.

PN268

It's not good enough in circumstances where the test, as we all know, has been described by the Full Court in the Lawrence v Coal & Allied matter as a stringent one for the appellant to put in a notice of appeal with a long list of factors without identifying why those alleged errors are significant and explaining either in writing or today why those errors are significant, because there's no point saying the test is a stringent one if we proceed on the basis that a long list of supposed errors without explanation as to why that error is significant passes muster.

PN269

I say there is no need to go into the detail, no need to engage with the appellant's long list. It's the job of the appellant, as I say, to articulate its case to the Commission. In doing so the appellant should have said, 'These are the significant errors of fact and these are why those errors are significant.' In the failure of the appellant to do so provides a basis for the Full Bench to dispose of ground 4 on that basis alone.

PN270

In respect of the additional tap‑on argument at ground 4 about irrelevant considerations, I refer to my earlier comments in respect of ground 2. I rely upon the authority of Mason J in the Peko‑Wallsend matter to persuade the Full Bench that you will not be persuaded, given the discretion is unconfined, that any of those matters that feature at annexure B of the appellant's outline are indeed irrelevant considerations. You don't have to worry about them. You don't have to go into detail because on the authority of Mason J none of those factors that the appellant says are irrelevant can properly be considered to be irrelevant.

PN271

I make the point, as I've explained and as we know, the test is a stringent one and, as I say, my view or the respectful submission I make is that for an error to be significant it must be decisive to the overall outcome. That is my submission about what 'significant' means. To give just one example, if you turn to annexure B of the appellant's outline you will see here the long list. I direct members of the Full Bench to the second finding, which is the finding at paragraphs 68(b) of the decision which is the length of the Mentser contract.

PN272

Now, the Commissioner's finding we accept was in error. If we go to paragraph 68(b) of the decision 'Mentser', the Commissioner says:

PN273

The Mentser contract had only just commenced and had almost five years to run.

PN274

The appellant says that's an error of fact. Now, we agree with that. We accept that the Commissioner has made an error and we accept that the evidence before the Commissioner was that the Mentser contract was for a term of three years - - -

PN275

VICE PRESIDENT CATANZARITI: You can take it from that one - because Mr Williams already conceded that nothing turns on that.

PN276

MR WALKADEN: I see, okay.

PN277

VICE PRESIDENT CATANZARITI: There is well tried authority as to what is a significant error of fact that would force an appellate bench to intervene.

PN278

MR WALKADEN: Yes.

PN279

VICE PRESIDENT CATANZARITI: It's not going to be every error of fact.

PN280

MR WALKADEN: Yes.

PN281

VICE PRESIDENT CATANZARITI: Even if the error of fact is actually blatantly wrong, if nothing ultimately turns on it then a Full Bench is not going to intervene.

PN282

MR WALKADEN: And that's the point I'm making where I paraphrased your Honour and said my view or my respectful submission was that the error would need to be decisive, but I just made that point - I'm happy to move on - where Mr Williams I thought in oral submissions said that every factor specified in annexure B was significant. I'm happy to move on because I think I'm pushing against an open door in respect - - -

PN283

VICE PRESIDENT CATANZARITI: Yes, Mr Walkaden.

PN284

MR WALKADEN: Yes, so that's my primary submission as it concerns ground 4 and I'm content, as I say, largely to rely upon my written outline where I engage with the appellant's long list - content for the Full Bench to take on board in the main what I've said there about why there is no significant error of fact.

PN285

Obviously there are references to the transcript, et cetera, so I'm largely content to deal with ground 4 on that basis but there are a couple of issues which I will take a little bit of time in dealing with because they may be matters that the Full Bench - I think they may have either asked Mr Williams or they might be things that the Full Bench are thinking about.

PN286

The first issue or the first alleged error is the third finding on annexure B which concerns the Commissioner's finding at paragraph 68(c) about whether the gas pipe and secondary support work of Nexus was either not specialist or not of a project nature. I have spent a bit of time already in respect of ground 2 dealing with this point, but I want to make this point crystal clear. Any suggestion that the Commissioner erred at paragraph 68(c) in finding that - you've got to carefully read the last sentence where the Commissioners says:

PN287

I am satisfied that not all of the work performed by Nexus is either specialist work or work of a project nature.

PN288

The Commissioner is not finding that all the work is not specialist work or work of a project nature. The Commissioner is finding that not all of the work is either specialist work or work of a project nature. Notwithstanding the criticism by the appellant, that is a finding made without error. In terms of the finding about whether the Nexus work was specialist work, the unchallenged evidence of Mr Davey of the union is that it was not.

PN289

Both Mr Grennell of Nexus, as well as Mr Carter of Peabody, both accepted that proposition. If you turn to the appeal book on page 311, at PN1709 I say to Mr Grennell:

PN290

Mr Grennell, you don't say that each and every task performed by Nexus employees is specialist work, do you?‑‑‑No.

PN291

Mr Carter, on appeal book page 378, PN2438 - where I say to Mr Carter:

PN292

I understand that, but not all the work done by, for example, the Nexus contract is specialist work, is it, Mr Carter?‑‑‑No, and I've outlined that in my statement -

PN293

et cetera. I won't read the rest of it, it's not relevant, but the point is that the appellant criticises the finding at paragraph 68(c) in circumstances where Mr Davey of the union, a former long‑term employee of the mine before becoming a full‑time union official, Mr Grennell of Nexus and Mr Carter are all singing from the same sheet. They all say that not all the work of the Nexus contractors is specialist work, so it can hardly be said that the Commissioner's finding at paragraph 68(c) that not all the Nexus work is specialist work is an error of fact.

PN294

In terms of the examples that the Commissioner relies upon at paragraph 68(c), the secondary support and the gas pipe installation work, a good description of what secondary support work is is found at paragraph 13 of the statement of Chris Murdoch, which was a statement tendered in the first hearing. That is found at appeal book tab 11, page 563. A good description of gas pipe installation work is found in Mr Davey's statement for the purposes of the second hearing at appeal book tab 41, page 1165.

PN295

In terms of those specific examples, I've explained in my outline with reference to footnotes to the evidence from both Mr Davey, Mr Grennell of Nexus and Mr Carter of Peabody, but a fair summary of the evidence is as follows: there is no error on the part of the Commissioner in accepting the unchallenged evidence - the unchallenged evidence, that is - of Mr Davey of the union that both secondary support and gas pipe installation work was basic black coal work performed by almost every underground operator in the coal industry. That's the evidence Mr Davey gave in his written statement for the purpose of the rehearing and he wasn't cross‑examined on that evidence at all.

PN296

I cross‑examined Mr Grennell and Mr Carter about those two specific examples; namely, secondary support work and gas pipe installation. Both Mr Grennell of Nexus and Mr Carter of Peabody accepted in cross‑examination that secondary support work was not specialist work. The references to that evidence is found in my outline. In respect of gas pipe installation, Mr Carter and Mr Grennell departed on that point. Mr Carter says that gas pipe installation was not specialist work, Mr Grennell maintained it was.

PN297

In the circumstance where that is the evidence - you've got the unchallenged evidence of Mr Davey, a full‑time union official but a former long‑term employee of the mine who gives unchallenged evidence that those two examples was not specialist work and you have two witnesses, one a senior manager of Nexus and, two, a senior executive of Peabody, giving evidence that secondary support work was not specialist work - how can there be error on the part of the Commissioner in finding by reference to that specific example that not all Nexus work was specialist work?

PN298

The same can be said with respect to the second example - namely, the gas pipe installation work - where Mr Carter, one of Peabody's most senior executives, agrees with Mr Davey, a former long‑term employee of the mine, that gas pipe installation work is not specialist work. How can the appellant possibly criticise the Commissioner for making an error of fact if that is the evidence on that particular issue?

PN299

I make the same point in respect of the appellant's criticisms at paragraph 68(c) of the decision that not all the Nexus work was project work. The reference to the evidence in annexure B is very selective. It refers only in that respect to the transcript references - the cross‑examination of Mr Carter only. There is no reference whatsoever to the cross‑examination of Mr Grennell on this point. Where using the example of secondary support it's obvious that that work is not project work, it is ongoing. You see that at page 316 to 317 of the appeal book from PN1768 to PN1771, where I say at PN1768:

PN300

I see. Now, on each shift at the Metropolitan Mine am I correct to understand there would be about four Nexus employees to be working in a crew performing secondary support work?

PN301

Mr Grennell answers:

PN302

Depending on the particular day, particular requirement or the priorities of the mine to what the crew size would be, it wouldn't be a standard four crew shift.

PN303

I won't read all of it. I just refer you to then the passages that follow, but the ultimate passage is found at PN1771 where I say:

PN304

By the sound of it, there would be a minimum of two Nexus men on each shift doing that secondary support work?‑‑‑At Helensburgh, yes.

PN305

So with reference to one of the examples in circumstances where it must be appreciated this obviously was a complicated case involving 24 dismissed employees and the argument was to a scope of work of both contractors which was quite extensive - and you'll see that from the respondent's below statement where they are required to do a self‑assessment of a wide variety of tasks. It wasn't a straightforward case, but some examples were latched onto to demonstrate the point and really hone in that this distinction between core and non‑core, specialist and non‑specialist was not true, and the gas pipe installation and the secondary support work was an example of that.

PN306

The point I'm making there is if that's the state of Mr Grennell's evidence, the general manager I believe of Nexus, which, sure, differs from Mr Carter's evidence about the frequency of when secondary support work was done, I do say that the Commissioner had a very sound basis for making a finding that not all the Nexus work was project work. To use Mr Grennell's evidence that there is basically two Nexus employees on each shift at the mine doing what - - -

PN307

VICE PRESIDENT CATANZARITI: Mr Walkaden, you can move on from this. You are actually over‑labouring this point.

PN308

MR WALKADEN: I see.

PN309

VICE PRESIDENT CATANZARITI: The case is not going to rise and fall on that point, but what you haven't really addressed - you might just move on to it - is the other part of that paragraph 68(c) which Mr Williams did draw our attention to that:

PN310

The fire on the conveyor belt seems to have been the catalyst for the outsourcing of this work -

PN311

and the throw‑away line by the Commissioner and its appropriateness:

PN312

However, it could be argued that a change in the culture of management was all that was needed.

PN313

That goes to the Commissioner on one view putting himself as to whether outsourcing or insourcing is appropriate. What do you say about that, Mr Walkaden?

PN314

MR WALKADEN: What I say about that is there was considerable evidence about the fire - I'm just pulling up the - - -

PN315

VICE PRESIDENT CATANZARITI: That's the question I put to you, Mr Walkaden. I put a very specific question.

PN316

MR WALKADEN: Yes, and I'm trying to answer it, which is that the Commissioner made observations about that in the context where the Full Bench in the first instance, as I said, explained to the Commissioner at paragraphs 86 and 87 that the feasibility of insourcing the work would be a factor that he might need to consider in conducting the rehearing. Now, the fire was raised by the appellant below - - -

PN317

VICE PRESIDENT CATANZARITI: To be more specific, what is the foundation for the statement that he says:

PN318

It could be argued that a change in the culture of management was all that was needed.

PN319

Where does that arise and is that an error that is influencing his decision?

PN320

MR WALKADEN: No, that's an error which arises from Mr Withers' questions. I'm just trying to pull up the reference, Commissioner(sic). I deal with that - I'm just trying to find the references here. So at appeal book page 331, where starting from PN1924 through to PN2030 - so it's a fairly long exchange and I'm not going to try and read all of it, but I hope to summarise it in this way, in that I cross‑examined Mr Withers about those matters, about the fire, which took place on the belts. That was described by Mr Withers as a turning point in deciding to outsource some functions on the belts.

PN321

If you look at the tail end of that rather long extract in the cross‑examination, in my respectful submission what you'll find in particular at PN2027 to PN2030 is an acknowledgment by Mr Withers himself that it was the senior managers, the supervisory employees, who were ultimately responsible for a breakdown in the procedure that led to the fire.

PN322

Mr Withers at first tries to palm it off as a failure for the process. When I take him to the fact there is human actors involved in the process and in circumstances where Mr Davey had given quite detailed evidence about how these matters are dealt with by the deputy at a mine who is required to complete a statutory inspection, he explains the issues that the regulator took issue with about cleaning not being undertaken, about tags for cleaning not being actioned.

PN323

So when there is detailed evidence from Mr Davey about those matters, that gives rise to cross‑examination here that on first blush on a superficial reading of Mr Withers' first statement you would think that he was effectively blaming the workforce for the fire and, in my submission, playing the safety card. It wasn't until we put on responsive evidence from Mr Davey which says he was a regulator, these are the issues the regulator took with the process, these are not factors for the underground workforce to do.

PN324

These are matters for the supervisory employees to act on a tag for cleaning. These are matters the deputy would have reported in their report to the undermanager. If the belt wasn't cleaned, that is a failure on the part of supervisory employees of the company because they didn't act upon their own process. You see they go through this exchange and, in my respectful submission, in that context one can understand why I say - in particular it's surmised at PN2027 to 2030; you see there is an acceptance by Mr Withers that there was a failure on the part of the supervisory employees.

PN325

It's a failure of process. It's a failure, as I've explained, on the part of the undermanager, for example, who receives a report - this is all described in Mr Davey's material - who received a detailed statutory report. We're not talking about a report on the back of a beer coaster, we're talking about a statutory report which the deputy completes which would have advised the undermanager that the area had - there was spillage. There was coal spillage at the belt and the area should be cleaned. The company undermanager decided not to allocate labour to that task.

PN326

That was all evidence the Commissioner heard and those are matters which I cross‑examined Mr Withers about, and also in part Mr Withers did get very agitated with the Commissioner's question about raiding - I think it was described as raiding the belts. For example, when it comes time for the Commissioner to ask questions of Mr Withers, Mr Withers expressed frustration that he would lose people to the belt work because other company employees more senior to him, presumably, would pull labour from that task to cut coal.

PN327

There was a sufficient evidentiary basis for the Commissioner to make the finding that he did at the paragraph you're concerned about, your Honour.

PN328

VICE PRESIDENT CATANZARITI: Yes. Thank you.

PN329

MR WALKADEN: I am content to rely then upon the issue about the project work. I will just hopefully wrap up in a short way. I won't be hopefully too much longer. Obviously the evidence of Mr Grennell about the sort of work that he has performed, as I say, there is some evidence about that.

PN330

The evidence of Mr Grennell demonstrates that Nexus put together a crew of workers to perform a job. That is found at PN1639, appeal book page 309. The evidence of Mr Grennell is that not each crew member is competent to perform each task. They move from job to job depending upon the needs of the mine. All of this would be unsurprising.

PN331

I do want to read appeal book page 310 where there is the example of - there is a typo and you have to take my word for it; it refers to it at PN1700 to 1702. There is reference to an 'Arnco', it should be an 'Eimco', which effectively is a loader which is a basic piece of machinery that is used in an underground coalmine.

PN332

The reference there - just one example, as I said - in a complicated case where a large number of employees (indistinct) large number of tasks that the contractors are performing, that is just one example of an employee who has a ticket to operate a loader. He might be working on one of these projects - the Centenary Project on one occasion - but at PN1702 Mr Grennell agrees that that employee who is not doing specialist work or doing this whiz‑bang stuff that any underground coalminer can't do, he's driving a loader. At PN1702, on the next shift that employee might be sent to longwall, once again to drive the loader.

PN333

Now, once again maybe the Commissioner could have gone into more detail or better explained it, but in circumstances where - we can assume the Commissioner knew what was being referred to with respect to the longwall, being the piece of machinery that cuts coal in an underground coalmine, which other than when it's being moved runs continuously.

PN334

So in circumstances where Nexus employees are operating a loader on one shift on the Centenary Project, which is time based project work, on other occasions being sent down to operate that loader on the longwall, we can safely assume they're not doing project work. Not all their work is project work and that example of the longwall, as I say - maybe the Commissioner has done too may south coast coalmining matters, members of the Full Bench, but I think that's where he was coming from in that respect.

PN335

There are a few other alleged areas of fact I do want to briefly deal with. The second one I want to briefly deal with, it's a point Mr Williams has made about the quality training. This is a matter which is the seventh finding of annexure B. We say there was a solid finding and I refer there to Mr Withers' evidence at PN2303, 2304, 2318 and 2319.

PN336

The issue about skills, I've explained why skills loomed large in this case. There is some criticism by the appellant about the finding made - paragraph 93 - by the Commissioner about the skills of the respondents below and their ability to pick things up quickly. I've explained that the parties - in particular the respondents below - met the Full Bench's call for greater specificity as to the skills of each of the respondents.

PN337

That was done by each respondent putting on a statement which set out whether the tasks that were performed by both the Mentser and Nexus contractors had been done by themselves either at the Helensburgh mine or somewhere else. If not, they explained the amount of training that would be required. The cross‑examination of the respondents was timid at best and that's not a criticism of Mr Williams, that's what it was, and their evidence wasn't seriously challenged.

PN338

I just refer the Full Bench for an example of that to the cross‑examination of Mr Bennett, one of the respondents, on appeal book page 162. I give an example from PN120 to 148 where - I won't read all of it, but you'll see the flavour of the cross‑examination of the respondents below as to their skills or the ability to pick things up quickly. PN120, the question is phrased in part by 'but you're pretty sure to pick it up quickly?' PN123:

PN339

I'm not suggesting you couldn't do it, Mr Bennett - but there would have to at least be a process of familiarisation.

PN340

PN126, which talks about the concreting example, which is what Mr Williams has raised again today; talking about concreting.

PN341

You accepted that you haven't done concreting either at Peabody or previously although you say you could do it with minimal training. I'm not suggesting that's not true.

PN342

Then PN129:

PN343

At least some process of familiarisation.

PN344

PN132:

PN345

I'm not suggesting you couldn't do it ... I'm just suggesting that it would take a little time.

PN346

Obviously you need to read Mr Bennett's answers where he comprehensively explains what that amount of retraining would be. You will see that that is a familiar theme throughout the evidence. So the point is, in answer to the appellant's argument did the Commissioner have a satisfactory evidential basis to make a finding that, in effect, the appellants or the respondents below either had the skills or could pick it up quickly to do the work in question, the answer is absolutely yes.

PN347

Unlike the specificity that was provided by the respondents below, there was no such specificity provided by the appellant below. Mr Withers or Mr Carter didn't go through each of the respondents below and say, 'No, their evidence in that respect is wrong because, for example, Mr Bennett has never done concreting but this is how much training he would require to do it.' Didn't engage - the appellant below didn't engage in that level of specificity, only the respondents below did and the evidence of both Mr Withers and Mr Carter as to the skills was expressed at the general not the specific. I refer there to PN2231 of Mr Withers and PN2433 to PN2434 of Mr Carter.

PN348

The only final factual question or alleged factual error I wish to raise is the question about supervision. This finding about supervision was the same finding that this Full Bench previously considered. It's basically the same point the Full Bench considered at paragraph 94 of the first appeal where the facts haven't changed; these Mentser employees are still working self‑supervised. The appellant raised a similar argument in the first appeal and the Full Bench at paragraph 94 of the appeal decision said that there's nothing to that complaint, so nothing has changed there.

PN349

I refer to PN2233 on page 357 and also I do want to just indulge the Full Bench by reading one more quick passage before I wrap up, at PN2234 where I say to Mr Withers:

PN350

And likewise, given that foundation, not knowing the identity of the applicants, not knowing their skills, competencies and any previous experience, you can't say on oath this afternoon whether if the Mentser work was insourced whether the results delivered by the two men crews would be any different, could you?‑‑‑No, I can't.

PN351

He gives similar evidence at PN2231 about how much training would be required. That just really ties off the point I was making that the Full Bench asked for specificity about skills, we put the evidence on, it wasn't challenged. Peabody or the appellant in the hearing below didn't do that and at best Mr Carter and Mr Withers didn't know the applicants, didn't know their skills and could only give general evidence.

PN352

So the Commissioner was perfectly entitled to make the findings he did about the applicants' skills and in particular in a shorthand way making the finding that they could pick things up quickly. Those are the only points I wanted to make about ground 4. I've made my primary submission. I've explained that I'm content to rely otherwise upon my written submissions in respect of the nitty‑gritty of the factual errors that are alleged and that's all I want to say about ground 4.

PN353

I don't think there's much I need to say about ground 5. I think I've said it in writing. The test here where the complaint is about the outcome in circumstances where the decision is a discretionary decision, the test is very high. I've referred in the context of my permission to appeal submissions - referred to the Lawrence v Coal & Allied decision. I think it's 2010 or 2012, something along those lines. The bar is very high. We all know that the bar is very high for establishing manifest injustice and, in my respectful submission, the bar is not met in this circumstance.

PN354

As I say and as I've been at pains to express, the Commissioner was tasked with being asked to exercise his discretion. He stayed within the bounds of his discretion. Other members may have reached a different conclusion, that's not the point. The point is did he make a House v the King error? I think I've explained in our submission why we believe that he has not.

PN355

As I've explained, I don't believe that by virtue of the Commissioner asking some questions of a witness or making comments about the fire in circumstances where hopefully what I've explained is I think that what the Commissioner was grappling with there was feasibility of insourcing in circumstances where the Full Bench said that that's a factor you should consider and plainly that was a matter put forward by the appellant below as a turning point, as a reason for the insourcing and Mr Withers expressed some concerns about how that would be managed.

PN356

The Commissioner came to grips with that in his reasoning, so I don't believe that, properly established, this is one of those rare cases where appellant intervention is required because the outcome could properly be described as manifestly unjust. Those are my submissions. As should be apparent, we say there is no error. The appeal should be dismissed. That is obviously our primary contention.

PN357

However, in the alternative if the Full Bench does find error we do make the point that this is a complicated case which involves 24 respondents to this appeal, but applicants if we get to merits. It is a complicated case and it does involve a considerable amount of detail. Our alternative submission, if the Full Bench finds error, is that the Full Bench should not simply conduct a rehearing based upon the submissions that have been put forward today, as well as the material.

PN358

Rather, if error is found the Full Bench should remit the matter back to the Commissioner or indeed another member of the Commission to decide the case in accordance with the reasons of this Full Bench. Unless there are any questions, those are my submissions.

PN359

VICE PRESIDENT CATANZARITI: Thank you. Commissioner Bissett, any questions?

PN360

COMMISSIONER BISSETT: No, thank you, Vice President.

PN361

VICE PRESIDENT CATANZARITI: Commissioner Wilson?

PN362

COMMISSIONER WILSON: No, thank you, Vice President.

PN363

VICE PRESIDENT CATANZARITI: Thank you. Any reply, Mr Williams?

PN364

MR WILLIAMS: Yes. Thank you, your Honour. I'll be quite brief; I think I have five short points. Firstly, early on in his submissions in relation to the Mentser work Mr Walkaden I think made a submission that the contention was that it was the two‑men crews that would be insourced and that Mentser might be able to continue to deploy belt technicians or perhaps some other form of supervision.

PN365

Given that that was the only ambition of the applicant's issues related training - and perhaps I think the software were not as relevant - that's not my recollection as to how the case was run and certainly the Commissioner didn't make any distinction of that kind, although I do recall some cross‑examination on the point and I wanted to give you some references.

PN366

At appeal book page 284, at paragraph number 1412, Mr Abbott who was the Mentser witness made the point that the Raven software was utilised to the benefit of all the Mentser employees, including in the two‑man crews, not just the belt technicians who did the inspections and it was useful for all the work that they did. At appeal book page 285, paragraph number 1417, he firmly pushed away as impracticable the notation that it might be possible for the two‑men crews to be insourced but the Mentser to provide some form of supervision or overriding management. I just give you those two references.

PN367

In relation to the point that's made by reference to Peko‑Wallsend, true it is that in section 389(2) the discretion is at large. Parliament has given the Commission a task to do and has left it in the hands of the Commission as to what matters will be relevant, but that of course does not mean that all matters or circumstances would be relevant because the decision has to be made by reference to all the circumstances. We would say that ought to be qualified by all the relevant circumstances.

PN368

That does not mean of course that the Commission is at liberty to decide for itself without proper examination of the circumstances what those circumstances are. That is, it's not available to the Commission to push away circumstances on the basis that in the Commissioner's view it's not convenient to deal with them or that the Commissioner does not choose to deal with them. If they're relevant circumstances, they're relevant circumstances and that would be something which would have to be dealt with objectively based on the facts before the Commission.

PN369

In this case it's not an answer based on the Peko‑Wallsend provision to say that the Commissioner decided what the circumstances were and there's no error disclosed if there were other circumstances which should have been taken into account or some which should not have been taken into account but which were. So far as that's concerned, in a matter where parliament is given such a broad discretion the issue of what is a relevant circumstance cannot be constrained, and that has been absolutely clear, but of course there is also guidance which builds up as the juris prudence builds.

PN370

In this case the Full Bench, building on previous authority, did give the Commissioner guidance in relation to what at least some of the relevant circumstances were. It was not on the basis that they were inevitably relevant, but on the basis that they would be the kinds of matters the Commissioner should deal with and indeed the Commissioner did make an attempt to deal with those circumstances as well as some others.

PN371

I have made my submission in relation to the extent to which the Commissioner actually took into account those circumstances or did so in a way which would properly discharge the function, but I just want to make the point that part of the task of the Commission in dealing with a matter like this is to work out what the circumstances are - what the relevant ones are. As far as that's concerned, as I have said, the Commissioner did get some guidance and I made a submission about whether he took advantage of the guidance.

PN372

I just also refer the Full Bench once again to the (indistinct) decision, which is a Full Bench decision at paragraph 35 and I make the additional point in that paragraph:

PN373

A decision‑maker is bound to engage with the issues raised by the parties.

PN374

The Commission could properly engage with an issue raised by the parties on the basis that it was irrelevant if that was the case, but they must be engaged with it and part of my submissions have been that in many cases they weren't. In relation to the suggestion that Mr Carter's explanation of Peabody's strategy was incoherent or was not consistent, much was made of this issue of whether the work carried out by Nexus was specialist, but that misses the point because Mr Carter - I should say that in relation to the Mentser work, the belt technician work, we absolutely make a point that it was specialist work and we defend our submission that the Commissioner wrongly found that it was not.

PN375

The company's strategy in relation to Nexus was not put forward at any point to my understanding on the basis that it was specialist. If you go to Mr Carter's statement at paragraphs 11 and 12, he doesn't mention specialist. He talks about core work and non‑core work. He says at paragraph 13:

PN376

Much of the non‑core work at the mine is performed by contractors. This is similar to Peabody's operations at the Wambo mine and elsewhere.

PN377

Then there was a lengthy debate in the cross‑examination, and as we've now heard in submission, as to whether some, all or none of the Nexus work was specialist work. None of the witnesses said it was all specialist work. There was some good‑natured disagreement between Mr Grennell and Mr Carter about which parts of it were or weren't, but I give you these references: in paragraph number 2465, appeal book 382, where Mr Carter dealt with gas pipe installation and he agreed that some of the Peabody workers had done some of that work. He said:

PN378

At times they have provided that work when we've done extensions, yes.

PN379

So the evidence was that that was not something which was done all the time by Peabody and, hence, unsurprisingly it was regarded by him as non‑core work. It wasn't not that important work, it was just non‑core work because it wasn't done all the time and it was apt to be furnished by a contractor with all the flexibilities we've discussed. At paragraph number 2470, appeal book 383, he dealt with - I'm sorry, the first submission I think was about secondary support. It was, I'm sorry, I'm mixing myself up. The reference I've just given you was about secondary support which Mr Carter said was sporadically done and, therefore, no doubt one of the reasons why it was apt for outsourcing.

PN380

At 2470 at 383, he talked about gas pipe installation and he said it's non‑core work, but he accepted that some of the applicants would have done it. His strategy, as he articulated, it was not about specialist work or whether it was specialised, it was about whether it was a core or non‑core. If it was non‑core, then it was the kind of work which could be wrapped into a project or more apt for outsourcing. So, we resist the submission that there was any lack of coherence in Mr Carter's explanation of the strategy both in his statement and in his cross‑examination. To the contrary, he explained coherently why the work which was outsourced to Nexus was consistent with Peabody's outsourcing strategy.

PN381

Just very briefly, Mr Walkaden made a submission in relation to the Kesterel decision and the Teterin decision to the effect that in those decisions the Commissioner had preferred the rights of employees over contractors. Can I just say that that's not how we read the ratio of those decisions at all. It was just simply that in both cases they had either found that it was not reasonable for a range of reasons to insource and in the Teterin case it was more a question of evidence as I understand it, but it wasn't the case that the Commissioners had actively chosen between the rights of one or other in any way. I don't read it in those decisions.

PN382

In relation to our table as to which there are significant errors of facts, your Honour, you pointed out quite correctly that I made a concession - I certainly don't resile from it - that at least one of those was not a significant error of fact. Can I, just for the record - and I'll go through this quickly - say which ones we say we defend as significant.

PN383

Starting at annexure B, the third one, 68(c), we say that was significant. The fourth one, 68(e), we say that was significant. The sixth one, paragraphs 72 and 102 in relation to Mentser as being a specialist contractor, we defend that as significant. The next one, paragraphs 74, 75, 93 and 102, in relation to the Mentser training, we defend that as significant. Over the page in our table, 76 and 97, the finding that Peabody would easily be able to replicate the information in related reports we defend as significant.

PN384

Paragraph 85, a couple down, that Peabody employees inspect the belt 700 per cent more than Mentser employees each week, significant. A couple down, 93, no significant training or retraining required to obtain competency in relation to the Mentser work, we defend that as a significant error. On the next page, page 21, in relation to paragraphs 95, 98 and 104, the local deputy will simply provide required supervision for insourced Nexus work, we defend that as significant by reference to evidence that there was a very sophisticated model of supervision within the Nexus workforce which was on the evidence not able to be really replicated by the employer.

PN385

The next one, 97, the applicant employees could easily self‑supervise themselves in relation to the Mentser work, we defend that as a significant error. The next one, paragraph 102, some of the applicant employees would have had far more competency to perform the Mentser scope of work than some of the Mentser employees, we defend that as a significant error. At the bottom of page 21, paragraph 103, the 2019 conveyor fire was the catalyst, we defend that as an irrelevant issue, not a significant error. That is the second part of our complaint about that finding.

PN386

Similarly, at paragraph 104, that Nexus was not performing project work and the Nexus project was due to finish around June 2020, we do not suggest the finding in relation to the duration of what I think was meant to be a reference to the contract as significant, but we do defend as a significant error the second part of that project has been performed - had been ongoing quite some time before June 2020 and had a specific and unchanged timeline thereafter. Finally, paragraph 104, the last one, no identifiable reason why the applicant employees could not be performing the Nexus work, reference to the deputy and supplement in relation to certainly the - we defend that as a significant error. I just wanted to make that clear in case there was any doubt about that.

PN387

Finally - well, next to finally rather, I'll say something about disposition. Mr Walkaden characterised my cross‑examination of the applicants as timid and I'm afraid I'm going to rise to the bait which he laid for me there. I have characterised it as sparing, and it was indeed. I said to the Commissioner that I've never been much interested in challenging the experience and the skills of employees who have lost their roles for reasons which were completely unrelated to those skills and that experience unless there was a good reason.

PN388

I did not see a good reason in this matter because it was not actually a point of contention between the parties that these were skilled underground miners with deep experience and with the ability, as one would expect, over time and with appropriate familiarisation, training and supervision to pick up some and perhaps many of the skills which were relevantly in the Commissioner's determination. I didn't challenge these men on that basis any more than I thought was required to protect my client's interests.

PN389

However, that evidence, that optimism about that and Mr Davey's optimism about that, has to be weighed against competing evidence from other people who were perhaps less optimistic and at the very least take what I would regard as the more perhaps credible and practical approach irrespective of their ability to pick up on the skills. It would certainly take a period of retraining, re‑familiarisation and in the context of a mine which was distressed and looking to protect its business, that in itself was a matter which militated against the Commissioner's finding. I did not take it any further than that and I probably made that clear in answer to Commissioner Bissett's question.

PN390

In relation to the disposition of the matter, our position is that the Full Bench is in as good a position as any Commissioner upon remitter to deal with the matter. At least the parties haven't suggested to you that there is a deficiency in the evidence and I think we come to you with a position that the case has been run, and it has been run effectively, in a transcribed way with of course the record that we have.

PN391

If you're in favour of my submission and you find error - our submission to overturn the decision - then it ought to proceed by way of a rehearing which we think could be done on the record without further submissions but, if the Full Bench required further assistance, no doubt Mr Walkaden and I would be more than available to provide it. Thank you, members of the Full Bench. They were the submissions I wanted to make in reply.

PN392

VICE PRESIDENT CATANZARITI: Thank you. The decision is reserved. The Commission is adjourned.

ADJOURNED INDEFINITELY [1.36 PM]