PN1

VICE PRESIDENT CATANZARITI: Good morning. I will take the appearances. Mr Tracey?

PN2

MR J TRACEY: Good morning, Vice President. If the Full Bench pleases, I seek permission to appear with my learned friend, Mr Minson, on behalf of the appellants.

PN3

VICE PRESIDENT CATANZARITI: Thank you, Mr Tracey. Mr Slevin?

PN4

MR T SLEVIN: If the Commission pleases, I seek permission to appear on the basis of the submissions filed to appear for the respondent to the appeals. I am instructed by (audio malfunction).

PN5

VICE PRESIDENT CATANZARITI: Thank you. Permission to both counsel is granted. This matter is listed for permission to appeal and for the appeal in a substantive way. We have had the opportunity to read the extensive submissions. We note that there is an amended notice of grounds of appeal and that is what will guide the deliberations today.

PN6

We now invite some short oral submissions. Thank you, Mr Tracey.

PN7

MR TRACEY: Thank you, Vice President. If the Commission pleases, I propose to rely on what's in writing, and I am grateful for that indication that the Full Bench has had an opportunity to read the submissions. I will follow those submissions by way of some brief oral submissions that are directed principally to responding to some of the matters raised in our learned friend's submissions, and I will address the grounds in the order we address them in our appellant submissions.

PN8

Beginning with ground 1, the error there is identified by reference to the Full Bench decision in Titan Plant, and that's an error which was said in that case, and also in other cases, such as the Sydney Trains Full Bench decision, to be of a jurisdictional nature.

PN9

What is raised against us is the question of materiality of that error. That was an error that was adverted to in the Sydney Trains decision at paragraph 25 where the Full Bench said that, in that appeal, it might have been said that the error, that is the Titan Plant-type error, was not of a material nature because once it was found pursuant to section 387(a) that there was no valid reason for the dismissal, there was nothing in the findings directed to 387(b) to (h), which could have avoided a conclusion that the dismissal was unreasonable. However, that issue didn't actually arise in Sydney Trains because, first of all, that relevant ground was abandoned and, secondly, the Full Bench went on in that case to hold that the finding of the Deputy President below in that matter that there was no valid reason was made in error, and that, of course, is the submission we make in this appeal, or application for permission to appeal, and that's the submission we made under cover of our grounds 3 to 7 and 10, which I will come to.

PN10

The respondents in this case actually concede that there was a Titan Plant-type error that was made by the Commissioner. What they say, though, is that that error was not material. In essence, they say it was not material because the finding that the dismissals were harsh, unjust or unreasonable of the shift managers was made on two bases: first of all, valid reason under 387(a), and then other reasons under 387(h), and it is submitted by our learned friend that the Titan Plant error only occurred in relation to the first basis, that is the valid reason basis.

PN11

However, in our submission, putting it that way reveals the problem. The conclusion based on the other reasons, that is the factors under 387(h) which Riordan C took into account, was made without properly giving effect to the factors in 387(b) to (c), and that's something that arises under our ground 2, and I will come to that, but we say, in relation to ground 1, that the Titan Plant error that Riordan C committed was jurisdictional because it was material, and it's material because it affected the Commissioner's overall consideration under section 387 of whether the dismissals were unfair, and that is considering all of the factors in 387, and plainly he did not give proper consideration, or it's our submission that he didn't give proper consideration, to the factors in 387(b) and (c).

PN12

In relation to ground 1, we would, without going to it, also rely upon some observations of Deputy President Anderson at paragraph 24 of the reasons in relation to the stay application, and I will refer to some other parts of your reasons in that, Deputy President, noting, of course, that we accept that those findings were made on a prima facie basis and it will be a matter for the Full Bench to determine finally, and for yourself as well as part of the Full Bench, to determine finally whether or not those observations remain the case after considering all of the submissions.

PN13

So, that is what we wanted to say in relation to ground 1. We say it's a material jurisdictional error which should lead to the quashing of the decision by itself.

PN14

Ground 2 is an alternative ground, as are the other grounds. We put ground 2 in two ways, and I would submit that this is a matter that does not seem to have been considered by a Full Bench of the Commission.

PN15

VICE PRESIDENT CATANZARITI: Sorry, just before you go on, if you are right about ground 1 and the decision were to be quashed, you would say that the Full Bench would have enough material to determine it itself?

PN16

MR TRACEY: No, unfortunately, in my submission, Vice President - and I will come to this in more detail - this is going to be a matter that, if it were quashed, it would need to be remitted to, we say, a differently constituted Commission, and that is essentially because there is a failure to make key findings of fact, to consider the whole of the evidence and to make findings as to credit, where credit was in issue and will be in issue on a rehearing.

PN17

VICE PRESIDENT CATANZARITI: Okay, proceed.

PN18

MR TRACEY: In relation to ground 2, we make two points, essentially. The first is that, on a reading of the relevant part of the decision - this is at paragraphs 112 to 113, in particular, of the reasons, and I will just bring those up myself - the Commissioner makes very brief findings that the applicants, the employees, were notified of the reasons for their dismissal and then says, 'This is a neutral consideration' and then he says, at 113:

PN19

The applicants were given an opportunity to respond to the show cause correspondence of the respondent. This issue is a neutral consideration.

PN20

That is the extent of the Commissioner's findings in relation to the factors in section 387(b) and (c) of the Act.

PN21

The first point we make is that this amounts to, in substance, a failure to take into account those matters and, in that regard, we rely on the decision in Bat Advocacy, and I might just take the Full Bench to the relevant part of that decision, which is in our folder of authorities. It's the decision that's the fourth of those. It commences on page 56 of our electronic folder. The relevant part of that decision which I wish to take you to is on page 74 of the bundle. It's paragraph 44 of the decision in Bat Advocacy of the Full Court of the Federal Court.

PN22

VICE PRESIDENT CATANZARITI: Yes, we have that.

PN23

MR TRACEY: Thank you, Vice President. I will just read out some brief parts of that paragraph:

PN24

The obligation of a decision-maker to consider mandatory relevant matters requires a decision-maker to engage in an active intellectual process, in which each relevant matter receives his or her genuine consideration.

PN25

Then if you go to the final sentence - there are other relevant parts of that paragraph - but if you go to the final part of the paragraph at the bottom of the page:

PN26

But if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its apparent relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision. Whether that inference should be drawn will depend on the circumstances of the particular case.

PN27

We submit that this is such a case of only cursory consideration being given to those matters. This is in the face of a submission made by the appellant below that the factors in section 387(b) and (c) should be taken into account as weighing strongly in favour of the proposition that the respondents' dismissals were fair. Nevertheless, at paragraphs 112 and 113, these matters are cursorily dealt with and then described as being 'neutral' considerations. What is meant by 'neutral', in our submission, neutral means giving no weight to those factors.

PN28

Now, if we are wrong about that and 'neutral' means that there is an evaluative judgment going on here on the part of the Commissioner in relation to these two factors, then we have an alternative submissions, which is this: that even if the Commissioner is regarded as having considered those factors and conducted the necessary evaluative judgment of them, he, in giving the neutral weight to them - so this is on the presumption that saying they are neutral is actually giving them weight, which we contest, but if that's the case - he has acted in a manner that is irrational and unreasonable within the meaning of the case law, and that's a jurisdictional error.

PN29

If I could take the Full Bench to another case, the Minister for Immigration and Citizenship v Li. The case is again in our folder and you will see it commences on page 80 of our folder and the relevant paragraph is paragraph 72, which is at the bottom of page 116/top of page 117 of the folder. There the High Court says:

PN30

The more specific errors in decision-making to which the courts often refer may also be seen as encompassed by unreasonableness.

PN31

Going over the page, after referring to the well-known judgment of Lord Greene MR in the Wednesbury case, at the very end of that paragraph 72, they say - I should say this is Hayne, Kiefel and Bell JJ:

PN32

Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.

PN33

Mr Minson points out to me that the sentence before that is also relevant, referring to the decision of Mason J in Pico-Wallsend, where His Honour Justice Mason considered that:

PN34

The preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is 'manifestly unreasonable'.

PN35

We contend that to give, essentially, no weight at all, or perhaps the most minimal weight possible, as is to be understood from the term 'neutral', the Commissioner has made this kind of error, and when one stands back and thinks about it, this has to be right, in our submission, because, commonly, unsurprisingly, in unfair dismissal matters before the Commission, if an employer has not given an employee an opportunity to respond or notify them of the reason, then those facts will be taken into account against the employer and in favour of - - -

PN36

VICE PRESIDENT CATANZARITI: Mr Tracey, what is your objection? In each of those two paragraphs, he does say, 'The applicants were notified of the reasons, so the box has been ticked, so there's no problem with notification; similarly, there was an opportunity to respond.' Is your objection because he says it's a neutral consideration? Is that the extent of your objection? It's not uncommon in a lot of these unfair dismissal decisions.

PN37

MR TRACEY: That's the vice that I'm pointing to.

PN38

VICE PRESIDENT CATANZARITI: Perhaps we can move on because you don't need to labour that point.

PN39

MR TRACEY: Well, that's not my point. My point is not the point you put to me. My point is that, as has occurred in other decisions, the Commissioner has not given weight in favour of the proposition that the dismissal was fair to the factors in (b) and (c), those mandatory factors which have to be considered in deciding whether the dismissal was fair. That is a fundamental error and it is - - -

PN40

VICE PRESIDENT CATANZARITI: It's not exactly what you put a minute ago, Mr Tracey, but, anyway, move on.

PN41

MR TRACEY: Well, if you're against me on that, Vice President, I would like to make further submissions, but if you're telling me to move on, I will.

PN42

The case of Bartlett is put against us by our learned friend in relation to that matter. It's at paragraph 19 of Bartlett. That deals with the usual circumstance where (b) and (c) are not - involve a failure to provide an opportunity to respond or a failure to notify of a reason, and they deal with the weight to be given in those circumstances, but it simply does not assist at all the respondents' case and it is no answer to our submission that there is an error here in relation to ground 2.

PN43

I will turn to grounds 3 to 5, which concern the matter of valid reason. The question of valid reason is important in this case because it's very important to know at the outset that Qube, that's my client, claimed valid reason was not limited to the respondents' failure to follow lawful and reasonable directions, and so much is apparent simply by looking at paragraph 50 of the Commissioner's decision where he recites my client's submission in this regard.

PN44

Part of the valid reasons that Qube claimed and alleged was that there was a failure of each respondent and an unwillingness on each of them to perform his duties, and a failure as well to take responsibility for it to acknowledge that failure. This is an important aspect of the alleged valid reason. It was supported by a substantial body of evidence, much of which was contested, and that's essentially in the form of Mr Kranendonk and Mr Lee's evidence on the one hand and the evidence of some of the respondents on the other, and that evidence - and this was contested - was to this effect. It is important, before I explain this, that the Commissioner makes no findings at all about this evidence of these key meetings.

PN45

The evidence was this: on 29 July, at a meeting with Mr Kranendonk, three of the respondents who attended that meeting said, in response to Mr Kranendonk saying, 'Going forward, we need to do what has to be done to assist the business during the upcoming industrial action', they said, 'I'm out' or 'I'm out, too.' That's what they said and the meeting ended on that basis.

PN46

Then you have the meeting on 2 August, at which four of the respondents attended, and Mr Kranendonk said to them - and again this is all contested evidence here, although some of it is accepted as being said by the respondents, some of them at least - this is what he said: 'You all work for Qube as managers. You will need to perform your duties as managers and do what is required to help the business through these times.' He also said, 'We need you to come back to work and do your jobs', to which the respondents said - and this is the evidence of Mr Kranendonk, and Mr Lee's evidence was very similar - the respondents said, 'I'm not prepared to work.'

PN47

There were denials from the respondents that they said that, so clearly this was in contest, clearly credit was in issue in determining these matters, and we put credit in issue because we explained why it was submitted the respondents were not credible witnesses and our witnesses were.

PN48

Now, there's just no findings about all of that, let alone the order in which those statements were made, if made. That is crucial in understanding whether or not Qube had a valid reason, as it alleged, that there was an unwillingness or a refusal to perform their duties on the part of the respondents. All of that was basically ignored; that contested evidence was basically ignored, and that is, we respectfully submit, because the Commissioner was led into error by the respondents' submission below, which sought to characterise the valid reason as merely a failure to follow a lawful and reasonable direction.

PN49

The Commissioner's error in this regard is most apparent at paragraph 87 of the decision, where he states that whether the direction was lawful and reasonable was what the case 'basically swings on'. It didn't basically swing on that matter, that is, whether the direction was lawful and reasonable. That was an element of the alleged valid reason, but it was certainly not the full valid reason relied upon by Qube and, as I have indicated, paragraph 50 of the decision recognises that Qube submitted the valid reason included and encompassed much more than just whether or not there was compliance with a lawful and reasonable direction.

PN50

VICE PRESIDENT CATANZARITI: Mr Tracey, what do we make of paragraph 88, after paragraph 87, which seems to be one of the - and I use it very loosely - one of the only references to credit, which simply says:

PN51

The accuracy of the respective recollections of conversations are questioned and challenged by both sides. There is certainly sufficient ambiguity, assumption and intrigue - - -

PN52

MR TRACEY: In relation to that paragraph, Vice President, we would say that that's a recognition by the Commissioner that there were credit issues in the case and, in fact, a very substantial table was filed by the appellant at the conclusion of oral argument which set out the various credit issues in relation to each respondent and, as I submitted, explained why credit was relevant, because there were contested conversations - - -

PN53

VICE PRESIDENT CATANZARITI: You say he should have actually dealt with it squarely, but (audio malfunction).

PN54

MR TRACEY: I should, just to be complete and in fairness to the Commissioner, there is another finding - I think it's at 153 - where he states that:

PN55

Where there has been contested evidence, I prefer the evidence of the applicants over Mr Kranendonk.

PN56

Then he has something to say about Mr Kranendonk's memory, the issues about Mr Kranendonk's memory, but what there is a conspicuous absence of is, in any finding, that any of the applicants, any of the respondents to the appeal, lacked credit. He simply doesn't deal with our submission that they lacked credit, and there was corroborative evidence of Mr Lee which corroborated Mr Kranendonk. None of this is addressed in the reasons, and I will come to the reasons as well and the question of adequacy of them.

PN57

VICE PRESIDENT CATANZARITI: Thank you.

PN58

MR TRACEY: Thanks, Vice President. Really the key part of the decision on valid reason is at about paragraph 92 and following. There you will see, at 92, the Commissioner quotes the recent Full Bench decision in the Mt Arthur case, which refers to the matter of whether an employee is expected to obey instructions which are incidental to that work. He then says, at 93, arising from that - and 94 as well - that - - -

PN59

VICE PRESIDENT CATANZARITI: Mr Tracey, we have some people who are not on mute and it's getting a bit of feedback. I can see from the screen there are people that are not on mute. Could you please go on mute. I thinks there's a Mr Nikolic who is not on mute at the moment, amongst others. Yes, keep going, Mr Tracey, we will see how we go.

PN60

MR TRACEY: Sure, Vice President. So, 92 to 94 is concerned with the Commissioner really asking himself a wrong question, with respect, and that is whether or not, arising from that language of the Full Bench decision, the meaning of 'incidental' in a dictionary definition has a bearing upon the scope of the individual respondents' duties as shift managers. Now, the word 'incidental' doesn't appear in their contracts; it doesn't appear really in any relevant document. So, we end up going through an analysis that then brings in the position description.

PN61

Now, there is a bit made about the position description in the parties' submissions on the appeal. Essentially - we have cited this in our submissions - all of the respondents gave positive evidence in their witness statements that they had never seen this position description. To that extent, the position description could not have been relevant in the sense that, on an orthodox, contractual law of contract analysis, the position description was part of the contract or informed part of the surrounding circumstances of any of their contracts of employment.

PN62

It may well be that when one looks at a broader question beyond what the contracts of the employees say, namely, the broader question of what the scope of their duties was, one can have regard to the position description and, to that extent, we don't say the Commissioner erred. He did give it a lot of weight, though, in these circumstances, which we say went too far; but, more importantly, he appears to ignore, or certainly not give effect to - and this is at the end of the quote from the position description in paragraph 95, just towards the end, the references to the qualifications and experience of the shift managers, which would include various qualifications relevant to work that stevedores might perform, and that seems to have been given no weight at all.

PN63

We then come down, just tracing through this relevant part of the decision, we come down to Mr Lee's evidence at paragraph 96. That evidence needs to be understood alongside Mr Lee's evidence quoted in 98 as well. You will note that in paragraph 98, in the quote from Mr Lee's evidence, he says in the course of that, that the respondents:

PN64

were trained in and competent to supervise and perform a wide range of operational skills and tasks in their roles as managers.

PN65

And that is evidence which, at the 98, the Commissioner says he has taken into account, and one would presume accepted as accurate. Now, there is no attempt to reconcile, on the part of the Commissioner, no attempt to reconcile that evidence as between 96 and 98 given by Mr Lee.

PN66

Then we come to paragraph 99, where he refers to this question of being required to perform stevedoring work. It is important - again this was important contested evidence, although most of the respondents themselves even accepted this - that Mr Kranendonk never said to any of them in those meetings, 'I am requiring you to do stevedoring work' in those terms. So, the Commissioner's finding that there's a requirement to perform stevedoring work arises in that context and it's a very unclear and, with respect, vague finding as to what is meant by stevedoring work.

PN67

The direction of Mr Kranendonk was that they should go and consolidate the yard, and he referred to some aspects of that. It was only that part of his direction, to consolidate the yard, that the respondents agreed he said to them, but it never got to the point where he actually asked them to perform any tasks, such as the kinds of tasks that they take issue with, like driving forklifts and the like. It never got to that point, and that was the clear evidence.

PN68

Following through this part of the decision, at 103, there's a reference to some of the contractual provisions, including the broad duties clause in Mr Brazel's and Mr Pedder's contract that they were to perform duties assigned to them from time to time, and then he finds at the end of paragraph 103 - this is the Commissioner:

PN69

I am not convinced that the wording in the contracts of Mr Pedder and Mr Brazel extend the right to the respondent for these two applicants to work outside their utilised skillset and demarcation boundary.

PN70

Now, the problem with that, and this emerges again at 104, is that this so-called demarcation boundary was not something that was put to any of the witnesses, at least in those terms. It is based upon - and I will come to this further at 107 - but it's based upon this historical understanding and folklore, as the Commissioner describes it, i.e. management performs management duties, stevedores perform stevedoring duties, and there's no evidence about that in the case, and I will come back to that, but it's important to recognise that the scope of a role is not to be defined merely by what is customarily done in that role. For example, it can be within the scope of someone's role to evacuate a building in an emergency, even though they don't customarily do it, and I just pick one example.

PN71

The findings here really seem to be based upon this so-called historical demarcation, which is the subject of no evidence at all, and that is apparent, as I say, in 107, and I encourage, of course, the Full Bench to read through these parts of the decision - I just don't want to read it all out - but 107 really has no evidentiary basis, with respect, certainly the first sentence and the second sentence.

PN72

Then, dealing with 108, the first sentence there is conclusory; the second sentence of 108 simply refers back to 95 to 96; the third sentence is contrary to the requirement in the position description to have appropriate licences, and then the stevedoring award would only be relevant if it's actually assumed that operations managers or shift managers do not do stevedoring work or work usually performed by stevedores. So, again, it begs the question.

PN73

Really what we submit about grounds 3 to 5, coming back to our submissions on those grounds, is that - and I'll do it in the order - we don't accept these are the full categories of errors, but our learned friend describes three categories and I will address those categories.

PN74

The first one is the failure to make findings of fact on contested issues, particularly about the alleged direction or directions given and the respondents' responses to that direction. It is no answer to our ground there in the first category to simply say that these grounds are not concerned with significant errors of fact. That's what our friend says at paragraph 24 of his submissions. These grounds that we are raising are concerned with a failure to make findings of fact in the first place. So, yes, that could be called a significant error of fact, but it's more fundamental than that: it's an error of law, and the decision of Hayne J in Waterways, which I will come to in a moment, which addresses errors in the fact-finding process, is the kind of error we are alleging here, but it could also be regarded as a significant error of fact because it goes to the heart of the valid reason, namely, what the terms of the direction were, when it was given, what the response was of the individual respondents.

PN75

The second category our friend uses to group the errors, although we don't accept this is the right way to do it, but, for convenience, we will go through it, is that - this is in relation to our grounds about making inconsistent or irrational findings of fact, and this is borne out by the clear inconsistency between the Commissioner's findings at 110 and 158.

PN76

If I could take the Full Bench to those paragraphs, at 110, which should be read in light of 109 as well, the Commissioner is finding, quite clearly, although he doesn't say what the content of - there were directions given, but he doesn't say what the content of the directions was in terms, but it is his finding that a direction or an instruction was given, and it will be recalled at the very beginning of the decision, he actually refers to 'a request' rather than a direction or an instruction, but that's immaterial to this point because, if one goes to 158 of the decision, you have an inconsistent finding where the Commissioner states:

PN77

I accept the submission from the applicants that they did not refuse to follow a lawful and reasonable direction at any of the meetings because no instructions were actually given to the shift managers.

PN78

Now, the respondents seek to suggest that there's a way of reconciling what we submit are fundamentally inconsistent findings and they say, in their submissions at paragraph 29, that the finding at 158 was found to be relevant, not only to whether there was a valid reason, but whether the dismissals were otherwise unfair.

PN79

Although that comes after the finding of harshness at 157, or harshness and unjustness, if I could put it that way, the finding at 158 is not expressed in the way the respondents say it is in their submissions, and we would also refer to your reasons on the stay application, Deputy President Anderson, at paragraphs 34 to 40, in relation to what we say is the fact that these inconsistent findings at 110 and 158 are not able to be reconciled on the fairest reading, we would say, and taking into account all the context in all of the reasons, they are simply fundamentally inconsistent and, in those circumstances, one of them has to be an error of fact, and a significant error of fact, because they go to the heart of the valid reason found, or the lack of valid reason found by the Commissioner.

PN80

Then there's the third category our friend refers to, and that's in relation to the position description, which I have really dealt with. We say that the historical understanding and folklore finding was, in the context of this decision, a key basis on which the Commissioner reached his conclusion about the scope of the respondents' duties; it goes to the heart of the finding of no valid reason, and we say that the errors we have raised under ground 3(h) in the amended notices of appeal completely undermines that conclusion about valid reason.

PN81

The point at 107 of the decision, which I have just taken you to, and this is the historical understanding and folklore that management performs management duties, stevedores perform stevedoring duties, has no evidentiary foundation whatsoever, and there was no evidence at all that, in those blanket terms, it applied to Qube's business at the Fremantle Port otherwise.

PN82

Even if we are wrong about all of that, none of this - we were not given an opportunity to be heard about this matter and this finding, so to make this finding about the demarcation is, with respect, a denial of procedural fairness, and it is also a jurisdictional error. I won't take you to it, but one of our authorities, which I will come to shortly, is the case of Soliman. Soliman is a Full Federal Court decision and the relevant paragraph is 23, where the Full Court notes that:

PN83

A critical finding of fact based on no evidence may constitute jurisdictional error.

PN84

And we say this is a critical finding of fact in the context of this decision.

PN85

I will actually go to Soliman now, because I am turning to grounds 6 to 7 and 10. The decision in Soliman is in our folder again and it's starting at page 158. I have just referred to paragraph 23, but the paragraph I will read from is at 55 in relation to our reasons grounds. That's on page 176 of the folder. At 55, the Full Court observes:

PN86

Even in the absence of a statutory requirement to provide findings or reasons, a failure to address a submission centrally relevant to the decision being made may similarly found a basis for concluding that that submission has not been taken into account.

PN87

Then, skipping the next sentence:

PN88

And a failure to take into account such a submission may constitute jurisdictional error.

PN89

Then if you go down to 57, one of the cases deployed against us by the respondents is the well-known case of Wu Shan Liang. In response to that, we would rely on what the Full Court here says at 57:

PN90

Just as reasons for an administrative decision should not be read with an eye keenly attuned to discerning error...eyes should not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party's case.

PN91

Then, just to finish off on the authorities in this area, I will just take you to what Hayne J said in Waterways v Fitzgibbon. That's at page 179 of our folder and following, but the relevant paragraphs appear on page 205 of the folder of authorities, paragraphs 129 and 130 of Hayne J's decision.

PN92

There are two senses, we say - and these are the ones articulated by Hayne J - where we say that Riordan C has given insufficient reasons. The two senses are these: first of all, the one at 129, and that is, at the end of 129 of Hayne J's decision:

PN93

Reference may be being made to the duty of a judicial officer 'to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate court if there should be an appeal (including) not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision'. To fail to make or cause to be made such a note may invoke principles of procedural fairness and constitute a failure to exercise the relevant jurisdiction.

PN94

We say that has occurred here, and I will elaborate on that, but we also rely on Waterways in the second sense where, at 130, Hayne J notes that, in that case, reference to the 'sufficiency' of the primary judge's reasons is not to be understood as seeking to invoke only those earlier principles. That's because the judge:

PN95

was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue.

PN96

Waterways, Mr Minson reminds me, has been cited by the Commission and applied in Galloway v Molina [2021] FWCFB 5419 at paragraph 62. So, it is quite clear that these observations, while referring to a judge, are equally applicable, relevantly, to a member of the Commission.

PN97

In relation to the first sense and the second sense of what Hayne J says there, the first point we would make, contrary to paragraph 36 of our friend's submissions, is that the mere length of a statement of reasons is not relevant in deciding whether they are adequate.

PN98

I will just briefly refer the Full Bench to Symonds v Vass [2009] 257 ALR 689 at paragraphs 135 to 137, which is a decision of the Court of Appeal of New South Wales, and another decision of that court in Keith v Gal [2013] NSWCA, 339 at paragraphs 82, 102 and 109 to 120. What we say is that, looking at 157 of the Commissioner's decision, is that it's impossible to understand from that paragraph why the dismissals were found to be harsh and unjust, even if there was a valid reason.

PN99

What are, we ask the question, the reasons identified above? If they are paragraphs 117 to 148, they are not reasons but simply a list of matters said to have been taken into account. It is entirely unclear why, how, to what extent and to what end those matters were taken into account. It cannot simply be assumed, in our submission, that each of those matters was taken into account against our client, the appellant and, at our footnote 40, we have referred to one of the matters that simply couldn't be taken into account, on any view, against our client because there's no element of unfairness or criticism of our client in that particular factor.

PN100

Now, the second sense - but, before I go to that, it is our submission, first of all, that Qube does not know why it lost and the Full Bench on appeal is similarly hampered in being able to understand why Qube lost the case in relation to the findings leading to the conclusion at 157.

PN101

Going to the second sense of what Hayne J talks about in Waterways v Fitzgibbon, namely, the failure to examine all of the material relevant to the issues, I have already addressed the Commissioner not making findings about those contested issues about the meetings on 29 July and 2 August: what was said, the timing of what was said by Mr Kranendonk, Mr Lee and the respondents.

PN102

In our written submissions, we have also addressed the unique circumstances of Mr Burkhardt and Mr Miller, who attended separate meetings with Mr Kranendonk and the respondent. In the respondents' submissions at paragraph 40, it is submitted that what Mr Miller and Mr Burkhardt said to the effect that they wouldn't do the work on 17 and 30 August at those meetings is somehow cured by what was written in their solicitors' letters after that, and we don't agree that's right and, in any event, even if what solicitors wrote later, after the individual employee has expressed their own view, somehow cures their position in relation to whether they were willing to work, the Commissioner simply didn't deal with this issue at all or make findings about it. We don't know what the Commissioner's view is about this question of whether those refusals to work were somehow cured or otherwise.

PN103

In relation to that second sense of what Hayne J says, we say Riordan C did not take into account the whole of the evidence and make findings on key material issues of fact concerning the direction, whatever that was, and concerning the refusals of the respondents to perform their jobs as shift managers.

PN104

There is also a third sense in which Riordan C's reasons are, with respect, inadequate, and that is borne out by - well, we rely on, in that regard, upon the case of Dranichnikov - Mr Minson tells me. We have referred to that in our authorities at page 306, and the relevant paragraphs are at 24 to 25, where there's a failure - where the High Court, Gummow and Callinan JJ, state:

PN105

To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.

PN106

And a bit further down at 25:

PN107

The question remains, however, whether what occurred either characterised a failure to afford natural justice or as that, and more, which we consider it to be, including a constructive failure to exercise jurisdiction.

PN108

That's what Riordan C's decision amounts to, in our respectful submission, as well.

PN109

I note that at paragraph - and I won't read this out - but at paragraphs 26 to 28 of our submissions, we refer to the failure to deal with some substantial and clearly articulated submissions we made below, and it is said in response to those paragraphs by our friend that the effective - and this is how I understand what is submitted at paragraph 42 of the respondents' submissions - it's essentially that the only reason for dismissal was that the respondents failed to follow a lawful and reasonable direction.

PN110

Now that is, with respect, just perpetuating the error which the Commissioner was led into below by the same submission, and the failure to follow a lawful and reasonable direction, as I have indicated, was only an element of the valid reason alleged; it was not the sole heart of the valid reason.

PN111

The failure to make the findings about these shift managers saying, 'I'm out' or 'I'm not prepared to work' is really a fundamental problem with the decision. These are highly paid shift managers, as was submitted, who were clearly stating, before any direction was given to them, that they weren't willing to do their jobs, and that's a submission that simply has not been properly addressed, with respect, by the Commissioner.

PN112

Turning to grounds 8 to 9 - I will be very brief on that point - which is really the remedy grounds, there is a finding in the decision at paragraph 147 that, at a time which preceded the respondents' words and conduct, which were the basis of the valid reason to dismiss on Qube's case, that Qube lacked trust and confidence, or lacked trust in the respondents. The Commissioner, when determining reinstatement, says nothing about that finding that he has made earlier at 147.

PN113

Mr Kranendonk's and Mr Lee's evidence was that they had lost trust and confidence in the respondents, and that was based both upon the assumption that the valid reason Qube alleged was valid, but also that lack of trust was premised upon other reasons that had nothing to do with the valid reason. That's not something the Commissioner addresses either.

PN114

Importantly, when Mr Lee and Mr Kranendonk were in the - sorry, before I go to that, Mr Minson reminds me that there were different disciplinary histories that these individual respondents had with Qube. None of that's referred to. That was in evidence as well. But, importantly, the evidence of Mr Kranendonk and Mr Lee was that they lacked trust and confidence in these individuals. That evidence was not challenged in cross-examination of Mr Lee or Mr Kranendonk. Again, that was a submission I made below and the Commissioner has not dealt with it.

PN115

There is also the evidence that most of the respondents, in fact, obtained employment after their dismissals. We all would accept that that's not going to operate determinatively against a reinstatement order; however, it is always going to be relevant, in my submission, to whether reinstatement is appropriate, and that submission was made below and it was not considered by the Commissioner.

PN116

The most dramatic example of that was the fact that Mr Brazel - there was evidence that Mr Brazel was working full time as an operations manager for Qube's direct competitor, Linx Cargo Care, in New South Wales, a position more senior to the position he had occupied at Qube in Western Australia. So, he had actually moved across the country. There was evidence about that, submissions were made about that, but the Commissioner did not address that matter when determining whether reinstatement was or was not appropriate.

PN117

The authorities are correctly cited by the Commissioner in relation to whether reinstatement is appropriate. There is no doubt that they are the correct principles, but he simply doesn't apply them, with respect, let alone give adequate reasons for how he came to this conclusion that reinstatement was appropriate in each case. He considered the respondents as a collective of six; he didn't look at each individual respondent's circumstances.

PN118

Then he has regard to an irrelevant consideration, which might - this is at 171 of the decision - which might be perhaps termed a 'pub test' - that Mr Kranendonk seems to have the type of personality that he could walk into any pub in Australia and, within five minutes, not be lonely or thirsty for the rest of the night. Now that seems to be the sole basis - not put to Mr Kranendonk or anyone - that leads to a conclusion that trust can be restored somehow. Nothing about any of the respondents and their attitudes. I mean, it's quite an extraordinary finding, with all due respect, and there is an error of the Waterways kind, of the Soliman kind, of the Dranichnikov kind in relation to the reasons with respect to reinstatement.

PN119

In relation to the grounds, we otherwise just rely upon what is in writing.

PN120

In relation to disposition, just to pick up what you asked me earlier, Vice President, in our submission, the grounds that we have numbered 1, 2, 3 and 10 are grounds that establish jurisdictional error, and I won't take you to it, but in our authorities folder, we have referred - in our last case, we have referred to cases that - well, there's a quote in the Commissioner of Taxation v Futuris Corp at 134 from Kirby J where he sets out the kinds of jurisdictional errors, adopting Aronson v Groves, which the Full Bench would be familiar with.

PN121

We say that 1, 2, 3 and 10 are jurisdictional errors, if the Full Bench finds them. If error of that kind is found and the Full Bench quashes the decision, we refer to - and I won't read from this - the difficulties expressed by the Full Court of the Federal Court in Technology One v Roohizadegan, which is our third-last case, at paragraphs 120 to 121 and 179, where the Full Court noted the difficulty in a case such as this, where there's a failure to make necessary findings of fact, a failure to make credit findings and a failure to consider the whole of the evidence, it's just not possible for an appellate court, or this Full Bench, in our submission, exercising appellate power of a similar nature, to make the necessary findings of fact which means, unfortunately, as I submitted earlier remittal is the only course that could be taken.

PN122

The remittal, if the Full Bench was minded to remit the matter, should in the appellant's strong submission be to a different member of the Commission apart from the Commissioner. The appellant would strongly object to this Commissioner rehearing the matter, particularly given the findings in very strong and hyperbolic terms, with respect, at 129 and 130, but also elsewhere.

PN123

And in relation to the matter going to a different member we rely upon Northern New South Wales FM Proprietary Limited v Australian Broadcasting Tribunal [1990] Volume 26 of the Federal Court reports, 39 at page 7, and we would also rely upon the CFMMEU v Office of the Fair Work Building Inspectorate [2016]FWCFB3241 at paragraph 9; Krav Magna Defence Institute v Markovitch [2019]FWCFB4258 at 68; and Solomon v The Cultural Office of the Embassy of the State of Kuwait [2019]FWCFB6293, at 34; and finally, Rigowski(?) v Western Australian Meat Marketing Co-operative Limited [2019]FWCFB4073, at paragraph 52. We would otherwise rely upon our written submissions subject to any questions the members of the Full Bench have.

PN124

PN125

VICE PRESIDENT CATANZARITI: Thank you. Any questions, Deputy President Anderson?

PN126

DEPUTY PRESIDENT ANDERSON: Yes, thanks, Vice President. Mr Tracey, on appeal grounds 3 and 5 you place an emphasis on a distinction that you say which exists between a refusal by the applicants, plural, to do their job, as distinct from a refusal by the applicants to follow a direction. That is, a refusal to do their job came before any direction was issued.

PN127

In putting that submission you have referred to the applicants generally but you've also made a submission that there was different bodies of evidence as to the circumstances of the particular applicants. So, is your submission that all applicants, that is each of the six applicants, refused to do their job, or are you referring to applicants Burkhardt and Miller, which you refer to specifically at paragraph 13 of your submissions, and the evidence that they had separate discussions about those issues with the employer?

PN128

And I appreciate your other submission that the Commissioner has not taken into account, what you say are separate circumstances of the individual applicants but you put a sweeping submission that all of the applicants failed to do their job and it's not readily apparent to me that that's the case on the evidence with respect to all the applicants.

PN129

MR TRACEY: So, I did put it in broad terms, Deputy President, so what I should do is just refer you to the separate situation of each of the individual shift managers. So, apart from Mr Butsenko, the other three applicants were - so this is Mr Iki, Mr Pedder and Mr Brazel, were present at the meeting on 29 July. They're the respondents who said - and there were no findings made about this but this was the evidence at appeal book 490 to 491 which is Mr Kranendonk's statement. They're the individuals who said, 'I'm out, I'm out too,' and that was before any direction was given by Mr Kranendonk to perform particular duties.

PN130

Then on 2 August you have the four applicants, so it was those three plus Mr Butsenko, as well, them saying, 'I'm not prepared to work.' Now at a further point after, there was a direction given to consolidate the yard, in broad terms, which they accepted what was said to them. The Commissioner, of course, doesn't find what the direction was specifically or what its terms were when it was given. But you have evidence there, not the subject of findings that these four individuals are saying, 'I'm out, I'm not prepared to work.'

PN131

That was submitted below and I would continue to contend, amounted to a refusal to perform their roles as shift managers, per se, and the refusal to comply with their terms and conditions of employment. As I submitted to Commissioner Riordan below, at that point Qube would have been within its rights to accept that that's repudiatory conduct and bring the employment to an end. It did not do so because it then embarked upon a procedurally fair show cause process which is something that I have also addressed.

PN132

The other two, Mr Miller and Mr Burkhardt, attended separate meetings and the evidence at (a)(b) Appeal Book 1185 in relation to Mr Burkhardt is that, and we've put this in our submissions, he said in his meeting on 30 August 2021, his answer was no, in response to the question, 'Will you come to work and do your job as a shift manager?' As I say, that's appeal book 1185. Then in relation to Mr Miller, he at a meeting on 17 August with Mr Kranendonk in response to a question, 'I will ask you again, come to work to perform your duties.' He responded, 'I will have to go and get some legal advice on this matter.' And then it was put to Mr Miller by me at PM139 of the transcript, 'I suggest to you that you were not going to perform your shift manager role under any circumstances while the picket lasted, is that right?' And Mr Miller's response was, 'Yes, unless they can ensure my safety, which they couldn't.'

PN133

So that's the key evidence in our submission which in the case of all six, demonstrate the unwillingness and the refusal to work, quite independently from the refusal to comply with a direction which might broadly be described as to consolidate the yard.

PN134

DEPUTY PRESIDENT ANDERSON: If there's a refusal to work, at least with respect to Mr Miller, it seems that it's a qualified proposition and it's a proposition based around whether his safety could be guaranteed.

PN135

MR TRACEY: Which he - - -

PN136

DEPUTY PRESIDENT ANDERSON: Why does that constitute and unreasonable position by an employee?

PN137

MR TRACEY: He says his safety couldn't be assured. Also, as I submitted to the Commission, Deputy President, there was absolutely no cogent evidence at all that Mr Miller and his safety would be affected. In fact, on the contrary. The evidence was that one could walk past the picket line without being in any way molested and attend the port, and that was the clear evidence in the proceedings.

PN138

So the notion that there was any safety concern actually had no objective basis whatsoever. I submitted that to Commissioner Riordan. He has not addressed that submission, at all. We have a waterways(?) error there. But apart from that the evidence shows, in response to your question, that Mr Miller's objection was not one that was supported by any evidence, at all.

PN139

In fact, there was other evidence that Mr Miller accepted, and others, that there was an ability to access the port other than by going past the picket line, and a number of managers were coming to the port through that alternative means. So the safety issue was, with all due respect to the Commissioner, non existent.

PN140

DEPUTY PRESIDENT ANDERSON: Separately to that specific issue but on the same theme, if I recall correctly during the stay proceedings I was taken to or referred to evidence where at least one of the employees did not hold the same licenses that other employees held. It might have been with respect to driving a forklift, for example. Is that accepted on Qube's side - - -

PN141

MR TRACEY: It is.

PN142

DEPUTY PRESIDENT ANDERSON: That to the extent you are relying on the licensing reference in the job description or referring to it to bolster your submission, it would appear that at least one of the employees wasn't licensed in the same way - - -

PN143

MR TRACEY: Yes.

PN144

DEPUTY PRESIDENT ANDERSON: Or other managers didn't hold a particular licence to do the particular work of a stevedore.

PN145

MR TRACEY: That's accepted, Deputy President, yes. One of them was in that case and I can confirm who that was. I believe it was Mr Butsenko. Yes, it was Mr Butsenko. But the others had backgrounds in the stevedoring industry working in that industry, which Mr Butsenko did not have.

PN146

DEPUTY PRESIDENT ANDERSON: All right, thanks, Mr Tracey.

PN147

MR TRACEY: Thanks, Deputy President.

PN148

VICE PRESIDENT CATANZARITI: Commissioner Hampton?

PN149

COMMISSIONER HAMPTON: Mr Tracey, I'll just explore one issue with you and that is, I think you're drawing a distinction between the requirement or the instructions you would set to consolidate the yard, versus the performance of so-called described as stevedoring work. I wonder in a practical sense whether that distinction can be sustained.

PN150

MR TRACEY: It can in my respectful submission, Commissioner, because first of all, consolidating the yard, there was evidence that that did not exclusively mean performing what might be described as stevedoring work, as you put it before, because I mean, there's no finding as to what 'stevedoring work' means by the Commissioner. But there was evidence that tasks involved in consolidating the yard did not necessarily require any licence or forklift driving or those kinds of things. They were tasks that anyone could do.

PN151

There was also evidence that if any of the shift managers was asked, if it ever got to that point, where there was an actual direction to do a task that might be called stevedoring work, then there was scope to - well, first of all, they might have refused but if they didn't there was scope for training to occur. So, consolidating the yard was a very broad direction, in other words, to go down and - that was really the outcome, as I put it to one witness, the consolidation of the yard rather than perhaps even a direction, but at the end of the day the tasks that would be performed were never actually directed.

PN152

So, I say there is, in relation to the direction issue but we just don't have proper findings, with all due respect to the Commissioner. But there's before that, an evidence of an unwillingness and intention not to be bound by the employment contracts to perform any duties before we even get to that.

PN153

COMMISSIONER HAMPTON: So, Mr Tracey, I'm not necessarily asking for them now but I would appreciate those previous references that you've referred to. Because just on face value, the Commission is, you know, often called a specialist Tribunal and it's what I would describe as a common sense Tribunal. I must say, I don't know how a yard of the kind that we're talking about here could be consolidated without performing manual work.

PN154

I'm trying to use neutral language here and not buying into the distinction. But it could not be, in my view, my preliminary view would be it could not be consolidated without performing the actual manual work. I don't know whether it would be performed without equipment. So I'd be particularly interested to see those transcript references in the actual evidence. So, if you could supply them later I would appreciate that.

PN155

MR TRACEY: We certainly will, Commissioner, and just to assist at this point, we would accept that it did require some manual work, as a proposition but it was not at the level that required verification of competency, or VOC or training for the particular kind. But we'll provide those references, certainly, and just a broader point arising out of that, we say that it was within the scope of the shift manager's duties to perform some of that kind of manual work incidentally to their main managerial duties in circumstances where the business was in a very difficult position due to the strike.

PN156

COMMISSIONER HAMPTON: Thank you, Mr Tracey. I have no further questions.

PN157

MR TRACEY: Thanks, Commissioner.

PN158

VICE PRESIDENT CATANZARITI: Thank you. Mr Slevin?

PN159

MR SLEVIN: Thank you, and I just want to start my oral address. I, of course, rely on the written submissions and I don't want to rehash what's in those. Just on my oral address, addressing something that just fell from Commissioner Hampton about the nature of the jurisdiction. In our authorities bundle we include the decision of the Full Federal Court in Coal & Allied v Lawler. That's the second of the decisions in our bundle.

PN160

We refer to paragraphs 34 and 43 for other reasons, but also in that decision at paragraph 25, the following is said, if I can get that up.

PN161

There is not doubt the members of FWC are, as were members of its statutory predecessor, the Commonwealth Conciliation Arbitration Commission, and the Australian Industrial Relations Commission bound to act judicially in the sense that they are obliged to respect and apply traditional notes of procedural fairness and impartiality, a list of authorities provided in parenthesis, however it is an important aspect of the work of FWC at all levels including on appeal, as it was with its statutory predecessors, that it is to proceed without unnecessary technicality and as informally as the circumstances of the case permit.

PN162

FWA is not a court and its members are not judicial officers as such, although the President has the same status as a Judge of this court and some senior members of FWA retain and equivalent status from earlier statutory arrangements. It is not inappropriate to say that the members of FWA have a statutory mandate to get to the heart of matters as directly and effectively as possible.'

PN163

That's what Commissioner Riordan has done in this case. The nature of this appeal and the grounds of appeal are very dispersive. There are elements of this appeal that simply amount to a desire to re-run the case at first instance. The Commissioner considered the submissions made, it sat through the evidence, considered issues such as credit in the usual exercise of discretion and in the usual manner that this Tribunal exercises its discretion.

PN164

Reading the submissions and listening to my friend this morning, of the appellants you would think this decision making process started at paragraph 83 of the published reasons. It didn't. The published reasons itself set out the submissions of the parties, set out the chronology provided by the appellants, set out the issues to be determined, and then a determination was made from paragraph 83 onwards. This was an unremarkable and orthodox means of addressing the matter. The appellant, however, simply wants to start at 83 and say, well, this is it. We don't know why we lost.

PN165

Of course they know why they lost. They sat through the case, they provided evidence to the Commission, they can read the decision in full, and it's quite apparent why they lost. And in that regard in terms of my oral address, I think focussing on the decision itself makes the point. It's clear that the Commissioner found that the respondents were each unfairly dismissed, as the dismissals were harsh, unjust or unreasonable. He made two findings in that regard and these are findings required by section 385,

PN166

sub-section (b) in determining whether there has been an unfair dismissal.

PN167

First, that the dismissals were harsh, unjust and unreasonable as the appellant had no valid reason for them, and that's the finding at decision 110. He also found that the dismissals were harsh and unjust for other reasons, the finding at decision 157 and 158. The Commissioner found that the appropriate remedy was reinstatement with orders for lost pay and continuity of employment, and those orders are at D174 along.

PN168

As to the first of those findings, the valid reason finding, the reason for dismissal was set out in the termination letters and it can be read at paragraph 11 of the decision, my friend says I led the Commission into error by focussing on the reason of failing to follow a reasonable and lawful direction. But that's what the letter said was the reason for dismissal. That's quite clear. Yes, reference is made, 'and you weren't remorseful about it, and because you weren't remorseful we've lost trust and confidence in you.'

PN169

But the reason for the dismissal was a refusal to abide by a lawful and reasonable direction. So, the Commissioner focussed on that question of what was this lawful and reasonable direction that they were seen to have failed to follow, and there was a contest as to what the direction entailed. The appellant claimed the respondents were asked to perform their duties, their shift managers duties. The respondent's claimed that they were asked to perform the duties of others, the stevedores, and so there was a contest and the Commissioner considered that contest, so I'll go to how he did so in a moment.

PN170

The reference to the issues that arose are found in the decision itself. There's no need to go back to the transcript or the written submissions that were provided to the Commissioner, and all of those things occurred, of course, the oral and written submissions, as well as the evidence. There's no need to go back to those because the Commissioner sets them out. It's just that he sets them out before paragraph 83 of the decision and it seems the appellant doesn't want to read those paragraphs.

PN171

The contest as to what the appellants claim the respondents were asked to perform is described at decision 38 at

PN172

sub-paragraph (b). The respondents claimed that they were asked to perform the duties of others, and that can be seen at the decision, paragraph 24. Reference to the issue is also found in the chronological background which is set out at paragraph 16. The summary of the applicant's case is found in the decision and there's a long section dealing with that question, and that issue is dealt with in - or referred to in the decision at paragraphs 24, 25, 69, 70 and 76.

PN173

The summary of the respondent's case is decision 53, 71 and 76 deal with that issue. The Commissioner found that the direction was to perform stevedoring work at the terminal during a period when the stevedoring employees were taking protected industrial action. That occurs not only at decision, paragraph 3 where the case is summarised, but also at the decision in paragraphs 99 and 104.

PN174

Once the direction was properly characterised the Commissioner went on to consider whether it was a lawful and reasonable direction. The submissions of the parties on the point are set out at D24 and 47. The Commissioner considers those submissions at 94 to 110, after saying at paragraph 83 that he had considered the submissions that he set out earlier in his decisions, and by failing to refer to them directly doesn't mean that they weren't taken into consideration.

PN175

Sometimes that formulation is criticised. It can't be criticised here because of the detail that the Commissioner went to set the submissions out. It was clear that he was familiar with the submissions that the parties made and he was going on at 83 and following to consider those submissions. In doing so, the Commissioner - and this is dealing with the valid reason question, identifies 10 matters which he takes into account. He uses that expression or provides that notation in a number of places in his decision and there's some complaint about that.

PN176

In our submissions it can't be a complaint, or it's a matter of style over substance, I suppose. But what that expression in the Commissioner's decision conveniently does is it delineates the various factors that he takes into account, so he considers a matter and I'll go to these in a moment, he considers a matter and he underlines it by saying, 'okay, I've taken that into account,' and then he moves onto the next matter, and when he's finished describing that matter he says, 'I've taken that into account.'

PN177

The manner in which he takes it into account must be read in context, must be read in relation to the submissions that were made on each of those points. Those matters included the contents of the appellant's position description; the description of shift managers work provided by the appellant's witnesses, that's D97; the nature of the instruction given which was not specific as to what stevedoring duties were required to perform, and I'll go to that question as much is made of that and there had been a tension in the decision.

PN178

We say there is no tension because was considering submissions that were made by the parties as to the nature of the actual direction that they were given, the direction that they are said to have failed to follow and that led to their terminations, a key aspect of their dismissals. But returning to the my descriptions, the Commissioner also took into account consideration of the respondent's contracts of employment, and that that with the duties required were those persons who were taking protected industrial actin and we say that at paragraph 104.

PN179

The Commissioner found that the direction was unreasonable at 109, and so not lawful or reasonable. It followed from this finding that there was no valid reason and the Commissioner so found at D110, and of course the Commissioner goes on to say, and on that basis he expresses an ultimate finding as to the unfairness, which is in terms required by section 385 but that approach now to

PN180

decision-making under these provisions has been criticised by the Full Bench as being erroneous. Our point about that as you see in the written submissions is that that's not a material error in these circumstances because in these circumstances the Commissioner doesn't stop there. He doesn't fail to go on and make further findings as he does later in the decision as to his ultimate conclusions.

PN181

The Commissioner then goes to the matters, having said that if I'm wrong about valid reason, goes to the matters and through 87(b) to (g) and finding that they were neutral, and that's an unremarkable finding, and a finding that the Commissioner is available to do. The respondent at first instance said, look, those matters are not determinative. There were criticisms of the procedure followed made by the respondents and that can be seen on the face of the decision, as to there was a lack of specificity throughout the process, not only at the time but the directions were thought to have been made but later in correspondence, and I point out that there were the meetings, and you can see this from the chronology at paragraph 16, there were the meetings that occurred and they were all brief meetings, certainly in relation to the four respondents, Butsenko, Brazel and Iki.

PN182

There were very brief meetings held in which very general directions were given, the effect of which was to do stevedoring work without descending to the point of saying what aspects of stevedoring work was required, other than that meeting on 2 August where consolidation of the yard was referred to, and I note the questions of Commissioner Hampton and I can give you a transcript reference in relation to what that meant. There was re-examination of Mr Iki on that point and you'll find that at paragraph number 839 on the second day of the hearing, and I can take you to that.

PN183

There was much evidence about what was meant by, 'consolidating the yard,' and it is found in a number of places in the evidence. There is a description of Mr Iki, as to what he believed consolidating the yard meant, and so at paragraph number 842, for example. 'So, we were talking about cars needing to be moved. Where would the cars need to be moved from, to in the exercise of consolidating the yard?' 'I can only assume what we would normally do if there was any closer towards the vessels, we would then take them to a spot at the back and put them all together as much as possible so that it gives us a lot more space at the front where the ships are being worked to put cargo there.'

PN184

'In terms of the machinery, the five tonne trucks, et cetera, you're talking about, are there any of those in that photograph?' Reference has been made to a photo that was in the evidence of an aerial shot of the yard. 'None that I can see but the general area behind the sheds, that striped shed, that area directly behind it, that's using the facility if they have them.' 'Thanks for that, Mr Iki. I think if we go back to the exercise where you were describing the various work that would be done in this exercise, you go to machinery. Is there anything else in addition to machinery that needs to be done when consolidating the yard? Could the moving of trailers, as well, because a lot of cargo come in on trailers, those need to be moved to an area where they can then be stacked on top of each other, lashed together and then moved into a position ready to go back out - how are those trailers moved?'

PN185

'They're moved with what is called a 'tug' and then you need to be VOC,' and I pause there, a verification of confidence required by the appellant, 'and trained on that to be able to do that.' 'How would you describe that work? You used the expression, 'general hand work,' earlier. Would you say the trailer, is that an expression you would use? So, general hand, just go back a little, does have any machinery requirements or use of machinery.' 'General hands move the cars, yes.' And so it goes. That's one of the areas in the evidence that deal with this question of what does 'consolidating the yard' mean. And the Commissioner makes the finding that 'consolidating the yard' is doing stevedoring work. It is quite clear on that evidence I have taken you to, but on the evidence in a number of places.

PN186

Reference was also made to the award and I won't, in the same way, take you directly to the evidence on this but there was cross-examination of Mr Kranendonk about the description of stevedoring work in the relevant enterprise agreement. The Commissioner doesn't pick up the enterprise agreement, he refers to the award. Mr Kranendonk was taken through the schedule of duties in the enterprise agreement that describes stevedoring work, and identified that work as being the work ordinarily done by the team leaders and stevedores who were on strike.

PN187

It was the same work that was being required of the shift managers because the team leaders and the stevedores were on strike, and that was accepted from Mr Kranendonk on the extract from the transcript that finds its way into the decision, and so you can see that question was not a question that left any doubt in anyone's mind, what the Commission was doing when he found that the requirement of these shift managers was that they do stevedoring work.

PN188

And the expression, 'consolidating the yard,' is as specific as the direction ever got, and that is in spite of the fact that there were letters written following the suspensions that arose from those meetings. There was a full exchange of letters in a show cause process where repeatedly, the solicitors on behalf of the responsibilities said, 'Look, you've asked them to do stevedoring work and they're not qualified to do it, and it's dangerous for them to do it, and they're willing to do their shift managers work if you'll let them come back and do it.' That was the effect of the correspondence. The Full Bench can see those letters.

PN189

They are in exhibit 20 in the proceedings and I'll see if I can dig up an appeal book reference. Hopefully my instructor who is in Perth at the moment might attend to that task for me. But those letters repeatedly said those things and there was no response. There was cross-examination of Mr Kranendonk that finds its way into the decision, as well, on this question. There was no response in the correspondence coming back from the company, coming back from the appellant to say, look, there's a big misunderstanding. We don't want you to do stevedoring work, we just want you to do your shift managers work, and we can sit down and discuss the details of that if you like. There was never a response along those lines, and there was the opportunity to do that before the dismissal in all of that correspondence.

PN190

My friend's case wanted to focus simply on those meetings. We addressed that in our evidence and we met that but we also relied on the letters that were sent before the dismissals which made clear the contest between the parties and the view taken by the respondents as to what they were being asked to do and why they refused to do the stevedoring work, and that included in the case of Mr Miller and Mr Burkhardt, but for all of them the question of their personal safety in circumstances where there was a strike and picket line in place and they were being asked to do the work of those striking and picketing.

PN191

DEPUTY PRESIDENT ANDERSON: Sorry to interrupt, Mr Slevin. Deputy President Anderson, here. Just on that point I'm not sure whether that's a correct characterisation of Mr Miller's evidence. His evidence was that he just was not prepared to cross the picket line because the fact of doing so, he considered a compromise to his safety.

PN192

MR SLEVIN: Yes, and - - -

PN193

DEPUTY PRESIDENT ANDERSON: And in his evidence when he was pressed on that even by the Commissioner, he says, 'Well, I am now happy to do the work of a shift manager now that I have received legal advice,' but still says that his safety is not guaranteed in crossing the picket line.

PN194

MR SLEVIN: Yes.

PN195

DEPUTY PRESIDENT ANDERSON: So, that's Mr Miller's evidence.

PN196

MR SLEVIN: Yes, that's right. Mr Miller's evidence in the first regard was in relation to the meeting that he had, on the chronology it was in August and it was after the others, 17 August, and there's a transcript of that meeting in the evidence, as well, Deputy President. What Mr Miller does say, and by this stage the industrial action had been going on for a couple of weeks, he indicates that he was aware that there were measures in place that the managers who were going into work and were doing the stevedores' work were arriving by boat and not crossing the picket line and that there were security measures being put in place for those managers.

PN197

So he was in a position where he had knowledge of what was in place and he mentioned that in that discussion he had with Mr Lee and Mr Kranendonk on 17 August. But importantly, the meeting ended and Mr Lee confirms this in his cross-examination, on the basis of them, 'Look, all right, we've discussed all of these things, I'm not prepared for safety reasons to be crossing this picket line. I'm concerned about that issue.' Mr Burkhardt similarly made comments in the meeting on 30 August. But in particular, Mr Miller, 'But I'm going to have to go and get legal advice about this.' And the meeting ended on that basis.

PN198

There was no express suspension of Mr Miller at that meeting. You can see that in the transcript of the meeting. He understood that he had been suspended as the others had. He was returning from a period of leave when he was called in for this meeting. So, off he went to get the legal advice. He gets the legal advice and then the correspondence commences on his behalf and it expresses the same view. 'Look, what you're asking is for stevedoring work to be done. As you know, the position is that it's not safe for the applicant, Mr Miller, and the others to do that work but they are willing to do shift managers work.'

PN199

Indeed, Mr Miller said at that meeting, 'Look, send me to another Qube port and I can do my shift managers duties there where it's safe.' So, the nature of Mr Miller's circumstances was, the meeting ended with, 'I'll go and get legal advice.' He goes and gets the legal advice and then there's correspondence from his solicitors in that regard.

PN200

DEPUTY PRESIDENT ANDERSON: Sorry, Mr Slevin but the difficulty I have with that is that in his evidence before the Commission, Mr Miller maintained the position when the Commissioner put to him the proposition that the company had made arrangements for alternate security to enter the site, that he still said and I'm quoting at PN140, 'I'm not even sure that would have guaranteed my safety.' And he continues to maintain the position that he does not wish to cross the picket line.

PN201

MR SLEVIN: He does, and that was the position he was giving in the witness box describing the view that he had then at the time of being in the witness box, but also by reference to the view that he was expressing on 17 August. The Commissioner goes on to make the point, the problem with the whole issue of security and also the point about whether people would be asked to do things that they weren't trained to do, the Commissioner makes the point is, well, before they were dismissed they were never told that. So, the way this proceeded is, it came to the proceedings and this evidence is put on, oh, we had Mr Taylor available to give people training if the wanted or needed, and to give them the VOC's, the verifications of competence, and Mr Taylor comes along and gives evidence and describes those processes.

PN202

But before the dismissal that wasn't put. It wasn't put at the time of the meeting on 17 August, it wasn't put in the subsequent correspondence, and so a distinction has to be made between what was happening before the dismissal and then what was happening in questioning and it came in the witness box, and Mr Miller did say, 'Look, I did get the legal advice and it was a case of crossing the picket line to perform shift manager's duties which was something that I could do but I still had concerns about safety in the circumstances.' He was quite frank about that, and we took that into account.

PN203

DEPUTY PRESIDENT ANDERSON: Our interest is obviously to consider the Commissioner's decision and identify whether the assertions by Qube that there's significant errors of fact are material, and at 147 of the Commissioner's decision if I can take you to that, the Commissioner makes a number of findings on this question and does so by referencing the applicants, that is, he just refers to the applicants. There is no distinction drawn between either the evidence of, or the circumstances of any of the individual applicants, and the Commissioner's conclusion or finding is that the applicants were prepared to work, the applicants were prepared to do their own jobs, the applicants were not prepared to perform work for which they were not trained or qualified to perform, or for which they were not employed to undertake. The proposition that I put to you from Mr Miller's evidence is that it's drawing somewhat of a long bow to suggest that Mr Miller was prepared to attend the site to perform this job given that he resisted the proposition that he was prepared to cross the picket line.

PN204

MR SLEVIN: He resisted that proposition in the witness box, and in terms of prior to the dismissal Mr Miller, along with all of the respondents, made it clear in correspondence that they were willing to perform their jobs as shift managers, either by expressly saying so in the meetings that led to their suspension, and certainly by expressly saying so in the correspondence in the show cause process. The Commissioner was well aware of the different circumstances relating to Mr Miller and Mr Burkhardt.

PN205

DEPUTY PRESIDENT ANDERSON: But the finding has not been made on that. That's my point here. The Commissioner's just referred to the applicants as if they're all of the same mind, gave the same evidence and presented the same circumstances.

PN206

MR SLEVIN: Yes. I might - I'm going to that, Deputy President and I should be able to jump ahead for you. Reference is made at 143 to Mr Miller. I'm in no doubt, and this is the part of the decision where the Commission deals with - yes, here it is - the Commissioner deals with the scab issue and the safety concerns associated with that. At paragraph 138, 'I have taken into account that both Mr Miller and Mr Burkhardt raised concerns about their families' safety. It is not in dispute that Mr Lee had the same concern and was provided with additional security at his home. I have taken into account that none of the shift managers were offered this additional protection.'

PN207

So, that's a distinction being made in relation to Mr Miller and Mr Burkhardt and we say it's a very important distinction and it was available to the Commissioner to make that finding in circumstances where at this stage he is considering other matters, and this is the point that we make that there are two basis for the finding of unfairness. One was the valid reason, and the other was the other matters, and it's a matter that clearly exercised the Commissioner's mind in his consideration given the way in which he dealt with that in the paragraphs before and you see the dealing with the word, 'scab,' and the acceptance by Mr Kranendonk in particular of what an egregious insult that was, particularly in the context of the waterfront references that are made to the '98 dispute.

PN208

So, I submit to you, Deputy President, that paragraph 138 in particular demonstrates that the Commissioner was aware of those different circumstances and took that into account in relation to those two, which he was entitled to and it was open to him to do, and it was the sort of finding that could lead on the basis of other factors, to a finding that it was harsh or unjust to dismiss someone in circumstances where they raised that sort of concerned about their safety and their families' safety associated with the direction that they were being given.

PN209

If I return then to the nature of the decision being made, you'll see that the Commissioner considers the submissions, starting at 117 of the decision, all the way through to 153, and in doing so he identifies 22 matters which he says he takes into account. Those matters include, 'the respondents made it clear they would perform their usual duties as shift managers,' and I've referred to that decision at 108; 'that performing stevedoring duties during a strike would expose the respondents to the serious denunciation as being scabs,' decision 123; 'the failure of the appellant to make clear what additional tasks by way of stevedoring work was required,' decision 121; 'the respondents were not offered training to do any additional tasks,' decision D125; 'the respondents were not offered the same security protection offered to others,' decision D138; 'the appellant's communication and consultation about what was required of the respondents was poor,' D144.

PN210

The Commissioner found that it was wrong, that if he was wrong as to the valid reason on the basis of these factors, and a fair reading of the decision must come to the conclusion that when the Commissioner refers to the 'factors above,' he is referring to those factors that he describes as the matters that he took into account if he was wrong about valid reason. And those factors were the factors under section 378(h) that he was, of course, required to consider, as well, factors that he felt were irrelevant.

PN211

Again, in a similar vein the respondents submit that given - if I move now specifically to the findings about valid reason, the appellant seems to simply want to re-run its case on this question. It just wants to say, 'Look, he should have agreed with us.' There is no analysis here of a fault in the reasoning process and this becomes clear when one considers the matters that the Commissioner took into account, and here I'm just dealing with valid reason because the submission we make is that it's similar to the Sydney Trains matter in that the Full Bench would say, well, he may have taken that into account and reached a conclusion, a la Titans, without looking at the other matters, but the Full Bench might want to turn its mind, and we say it should, turn its mind to, well, was he right about valid reason? And we would submit that his reasoning as to valid reason is unassailable.

PN212

The finding he makes, again referring to the decision that the relevant manager, Mr Kranendonk made the concession that the work he required the shift managers to do was stevedoring work, and you see that at D99; there was uncertainty in the evidence as to the precise nature of what stevedoring work the appellant required the respondents to perform and you see that at decision 98. The respondents were not told that when appointed to the role of shift manager that they would be required to perform stevedoring work. You'll see that at paragraph 100.

PN213

The evidence in the appellant's position description for shift managers at paragraph 95, and the respondent's operations manager, Mr Lee, as to the duties of shift managers, neither of which included a requirement to perform stevedoring work and you'll see that at paragraph 97, so there's not this - perhaps it's because the Commissioner actually set out the position description that the submission is made that that was crucial. It wasn't crucial. It was one of the factors taken into account and the Commissioner was entitled to do so.

PN214

He also referred to the evidence of one of the managers,

PN215

Mr Lee, who described shift managers' work and that's set out at paragraph 97. It was uncertain that a requirement to do stevedore's work was legal as the respondent's contract did not provide for it. That's at 101 and that's a frank reflection of the reasoning process being followed by the Commissioner. He says, all right, well, I've looked at this and I'm not certain about the lawful aspect of this direction, and so he turns his mind to the reasonableness because the submissions have been made about what that means and there's the decision to refer to that it's not simply lawful, it's a question of reasonableness.

PN216

He refers then at paragraph 103, that only two of the respondent's contracts included a requirement to perform duties assigned by the company, and in that context the position descriptions did not make any reference to additional duties or the requirement to do stevedoring work. That was a finding open to the Commissioner at 103. That the four respondents in attendance at the 2 August meeting were prepared to perform their own duties as shift managers throughout the industrial dispute, and when they were asked at that meeting to consolidate the yard they were being asked to perform stevedoring work. There's a finding there about that despite what the appellant says, which was work for the employees on the picket line. That's at paragraph 104.

PN217

The historical understanding is that on the waterfront, management performs management duties and stevedores perform stevedoring duties. There are important safety reasons for this. That's at paragraph 107. The attack there is that somehow this is a crucial finding. It's not a crucial finding, it's one of the findings made first of all. So far as the industry nature of the demarcation and the safety aspects of that, the Commissioner sets out Mr Kranendonk's principled position, he describes it as, that the person shouldn't be asked to do work that they're not trained to do because of the dangers on the waterfront, and Mr Kranendonk refers to his experience of being present when a fatality occurred on the waterfront involving a forklift, and so that sort of industry evidence was in place and arising from Mr Kranendonk's evidence.

PN218

Then the next factor taken into account at paragraph 107 on valid reason, is that while Mr Kranendonk took the view that he would not require them to perform stevedoring work for which they were not qualified, he informed the shift managers that this was (audio malfunction), and again he failed to do it at the meetings that were referred to, the brief meetings that led to this admission, and failed to do so in subsequent (audio malfunction).

PN219

Then the last factor at paragraph 108 is that the shift managers are not required to do stevedoring work under the award. Doing tasks such as driving cranes, forklifts or other machinery are not incidental to shift managers' work. You will find the cross-examination about the enterprise agreement where the tasks required (audio malfunction) required on the stevedore agreement for team leaders and stevedores at appeal book 278, across (audio malfunction) paragraph following. So, that was the enterprise agreement the Commissioner says the award but similar demarcations appear in the award.

PN220

It was these matters, all of these matters that led the Commissioner (indistinct) that he was satisfied that the direction to perform stevedoring work was unreasonable. The Commissioner goes on in the same paragraph to say the respondents were not qualified to do the work, it was not common practice for them to perform stevedoring work. He again states that the work of a stevedore is incidental to the work of a shift manager, and pointed to the example of one of the respondents, and this was referred to in the questions asked from the Bench earlier, Mr (audio malfunction) who has never worked as a stevedore and would struggle to be able to perform his role as a shift manager if it included stevedoring work, indicating it was not a prerequisite for the role.

PN221

You will find the description of Mr Butsenko's work history in the decision at paragraph 8, where it's quite clear that Mr Butsenko (audio malfunction) did work in the past, but in the distant past for many of them. They gave evidence that they didn't have the current tickets required to do that work, and so those were the circumstances of Mr Butsenko and they are reflected in the decision at (indistinct).

PN222

At 112 to 116, the Commissioner considered the matters in 387(b) to (g), noting that the respondent raised issues under 387(b) to (g). There were other issues raised as to procedural fairness aspects of the dismissal. They weren't directed at section 38 (audio malfunction).

PN223

VICE PRESIDENT CATANZARITI: Mr Slevin, I'm having some difficulty. I'll just check on the technology. You're breaking up and your picture is frozen. Yes, we're just checking into it because it's going through other cameras, as well.

PN224

MR SLEVIN: (Audio malfunction).

PN225

VICE PRESIDENT CATANZARITI: Mr Slevin, if you could stop for the moment while we try to sort this out.

PN226

THE ASSOCIATE: Excuse me, Bench and parties. Mr Slevin, if you can hear me, can you please disconnect from the call and reconnect.

PN227

MR STOJANOSKI: Associate, this is Daniel, Mr Stojanoski, I've conveyed a message to Mr Slevin to disconnect.

PN228

VICE PRESIDENT CATANZARITI: Thank you. Mr Slevin, can you hear us now?

PN229

MR SLEVIN: I can now Vice President.

PN230

VICE PRESIDENT CATANZARITI: We lost you about five minutes ago, so hopefully we won't lose you again.

PN231

MR SLEVIN: Thank you. I share your hope. Was I - I just wondered where I was in my submissions. I was dealing with the – I went through methodically the factors taken into account for the purpose of valid reason. I wonder whether I was lost in that or I had completed that.

PN232

VICE PRESIDENT CATANZARITI: No, you had not finished it. You were still continuing it when we lost you. Towards the end.

PN233

MR SLEVIN: Did I deal with the historical (audio malfunction) on the waterfront?

PN234

VICE PRESIDENT CATANZARITI: No.

PN235

MR SLEVIN: Well if I go to – perhaps if I go to paragraph 97. Going through the paragraphs of the Commissioner, I might briefly revisit them so it's clear what the submissions of the respondents are, but on the question of valid reason, the first issue dealt with, or the issue of what the work (indistinct) required was dealt with at paragraph 99, and that was stevedoring work, that there was uncertainty in the evidence as to the precise nature of that work. That's paragraph 98.

PN236

The respondents were not told when appointed to the role of shift manager that they would be required to perform stevedoring work, and the Commissioner took that into account at paragraph 100. The evidence in the appellant's position description for shift managers at paragraph 94, and of the respondent's operations manager, Mr Lee, as to the duties of shift managers, neither of which included a requirement to perform stevedoring work, was a consideration taken into account by the Commissioner.

PN237

It was uncertain that a requirement to do stevedoring work was legal, as the respondents' contracts did not provide for it.

PN238

The Commissioner then moved on to reasonableness, and so the finding made at 101, which is argued against the reasoning process of the Commissioner, is not a fault or an error by the Commissioner. The Commissioner is being quite frank in his reasoning process that at that point he wasn't certain that it was a legal requirement, but he was aware that he needed to move on to the question of reasonableness, and that's consistent with authorities. Then in that regard, at 103, the Commissioner says only two of the respondents' contracts included a requirement to perform duties assigned by the company, and in that context the position descriptions did not make any reference to additional duties or the requirement to do stevedoring work, and that was a finding open to the Commissioner.

PN239

The four respondents in attendance at the 2 August meeting were prepared to perform their own duties as shift managers. They said so throughout the industrial dispute. They said so as early as 2 August, and when they were asked to consolidate the yard, they were being asked to perform stevedoring work. That's the finding made by the Commissioner and its open on the basis of this sort of evidence that I referred to earlier, paragraph 104.

PN240

The question of the historical understanding is that the waterfront management performs management duties and stevedores perform stevedoring duties. You see in the decision the extract of the cross‑examination of Mr Kranendonk, where he puts his position, which the Commissioner calls it's a principal position, that he would never require anyone to do something they weren't qualified for because of his industry experience, and in particular his experience of being familiar with a fatality that occurred in relation to a forklift on the waterfront.

PN241

The conclusion at 107 that there were important safety reasons for that demarcation is supported by the evidence of Mr Kranendonk. Then Mr Kranendonk took the view that he would not require them to perform stevedoring work for which they were not qualified, but that he failed to inform the shift managers that this was the case. He didn't inform them of that at the time he met with him. He didn't inform them of that in any of the correspondence that followed the suspensions and the meetings that he had.

PN242

So that finding at 107 is supported by the evidence that, 'Shift managers are not required to do 'stevedoring work' under the Award,' the stevedoring tasks such as driving cranes, forklifts or other machinery are not incidental to shift manager's work; that finding at 108 in relation to the award.

PN243

I referred earlier to the cross-examination about the enterprise agreement that set out the duties. The list of duties in the enterprise agreement that were required of team leaders and stevedores were part of the cross‑examination at appeal book 278, commencing at paragraph number 1884. I won't take you to that in detail, but the essence of it is that those tasks were put to Mr Kranendonk as being stevedoring work, and that those tasks were the types of tasks that were required to be performed to consolidate the yard, and that they were tasks that were performed by those who were on strike and on the picket line, and Mr Kranendonk had accepted that indeed what he wanted the managers to do was work of that nature.

PN244

So these matters led to the Commissioner stating at 109 that he was satisfied that the direction to perform stevedoring work was unreasonable. So I get to that point to say, well, there's no basis upon which the Full Bench would make a finding that there was any error in the reasoning process to come to the finding that there was no valid reason.

PN245

The finding that there was not a lawful and reasonable direction is sound based on that reasoning and the Full Bench would not substitute a finding that it wasn't, and having made that finding it becomes relevant to the materiality of the appeal so far as it relies - and it relies heavily - on this suggestion associated with the Titan case, but it doesn't meet the description of materiality in the Sydney Trains case, nor does it arise, in my submission, to jurisdictional error given that the error of saying that that's enough for me to find it's an unfair dismissal affected the exercise of the jurisdiction, especially in circumstances where the Commissioner goes on to consider section 387(b) to (g), noting that those matters were neutral, and I respectfully adopt the observation by the Vice President earlier this morning that the factors in section 387, and (b) and (c) in particular, are regarded often as ticker box‑type exercises. They do refer to matters of procedural fairness, and as I submitted earlier, there were complaints made by the respondents as to procedural fairness followed in the investigation – I think it was described as process that followed the – well it was an investigation show cause process that followed the suspensions.

PN246

Then at 117, the Commissioner commences his consideration of other matters and uses the expression here that he's taken into account those matters, and those matters address the submissions that I described to you earlier about the nature of the dismissal and the matters raised by the respondents as to the unfairness; in other words, they were matters relevant – were raised by the parties, and submissions and evidence were heard on all of these issues, and the Commissioner made these findings.

PN247

My friend again and my criticism is that the appellant seems to only want to start consideration of this decision at paragraph 83, but the findings that are made address the matters that were part of the submission, and there's quite a list of those, from paragraph 117 to 147.

PN248

The matters include, in the first three paragraphs, the unchallenged evidence of the appellant's witnesses, the meeting of 29 July. Mr Iki said that he would perform shift manager's duties, and Mr Pedder and Brazel took the same approach; in other words, look, we will come to work and we'll do shift manager's duties was the approach taken on 29 July. There was no specific direction issued on 29 July. That was just an information session that went awry when the managers refused to sign a document that they weren't allowed to read, and the Commissioner makes some findings about that.

PN249

Other findings in other matters, the evidence of the operation manager, Mr Lee, concerning the meeting of 2 August, and my friend says no findings were made about these meetings. Well, paragraph 121 of the decision you find the Commissioner dealing with the evidence of Mr Lee concerning the 2 August 2021 meeting, including that the respondents were not given specific duties, but were required to consolidate the yard, which is a general term used to refer to the preparation in order to receive the cargo which is being discharged from the vessel, which generally includes 'tidying the yard and moving any items from the yard, such as vehicles, machinery, timbers or gluts, chains and anything else which was required to be cleared and packed away.'

PN250

There was a contest about who said what at the 2 August meeting, but Mr Brazel said, look, I said to him do you mean we have to operate machinery. Mr Lee, for the respondent, said no, he didn't say that; he said, 'Do you mean we have to drive forklifts.' That was the extent of the contest about what was said at the meeting. We adopted the: all right, well say he just said driving forklifts, forklifts require a licence, forklifts require a VOC. Mr Brazel says, look, the point I was going to make was we're not qualified to do that but I was cut off.

PN251

There was no contest in the evidence that that was a brief meeting, indeed the managers were cut off, and that no discussion was being entered into as to the specific tasks that would be required and whether these shift managers were even able to do those tasks. So that's what's happening in paragraph 121, and you see the Commissioner's making findings about that. That's the meeting of the 2nd.

PN252

As to the evidence of Mr Lee that at the meeting on 17 August 2021 Mr Miller said that he was prepared to do his job as a shift manager but would not cross the picket line, as he didn't want to be called a 'scab,' Mr Lee in his oral evidence accepted that the appellant was asking the respondents to do work that would fit the definition of 'scab.' So Mr Lee accepts that in his oral evidence. That's set out as well, and that protection was provided to others who perform that work, but that protection was not offered to the respondents, paragraphs 122 and 123 of the decision.

PN253

Mr Lee's evidence was that the respondents were being asked to perform additional tasks that were stevedoring work. He gave that evidence as well. At paragraph 124 the Commissioner makes a finding. The evidence that the respondents were not told that they were required to perform work for which they were not trained, training would be provided. That's paragraph 125.

PN254

Mr Lee's evidence that the employees were never told that they could be required to perform stevedoring work during industrial action was taken into account, paragraph 126. Mr Kranendonk's evidence changed during his cross‑examination, according to the Commissioner, from denying that there was an expectation they perform stevedoring work to agreeing that he wanted them to perform the work of the striking stevedores; paragraph 127 to 128, another factual finding.

PN255

Then a number of findings were made about the meeting on 29 July 2021 about signing a confidentiality agreement and not being shown a copy of that agreement, and that's 129 to 130, another factor the Commissioner took into account in considering the fairness and all the circumstances surrounding the dismissals.

PN256

When one of the respondents was questioned - Mr Kranendonk - about the deed, he was told to make his own assumptions about the content of the document; paragraph 131, a finding about what happened at that meeting. My friend says no findings were made about this contested evidence. Here is a clear finding in relation to one of the issues in contest. Later the Commissioner refers to that as being a failure of communications, failure of being clear about the directions that were required. The fact that only seven managers were asked to sign the document – there were 13 managers in full, and after the (indistinct) on 29 July it seems that the appellant abandoned the idea of having people signing confidentiality agreements.

PN257

The issue about what was said at the meeting on 2 August is dealt with at paragraph 133. That was another issue about who said something derogatory about the strikers. Mr Kranendonk said that it was one of the respondents, and the respondents said no, Mr Kranendonk said that. That's at paragraph 133.

PN258

Mr Kranendonk's evidence that he would never ask anyone to operate any type of machinery that they weren't qualified or comfortable with operating, and for failing to tell the respondents that was a factor, another fact in determining whether the dismissal was harsh or unjust. Paragraph 134 you'll find that.

PN259

Paragraph 135, Mr Kranendonk's evidence that all of the respondents advised Mr Kranendonk that they were prepared to perform shift manager duties, but not the duties of striking stevedores for reasons including safety, personal and family safety demarcation and the need to preserve a working relationship with the striking stevedores. That's at paragraph 135.

PN260

The questioning earlier of Mr Tracey went to this issue of, well, did the Commissioner make distinctions between the various applicants. We point this out in the written submission, but I want to emphasise it. At no stage did the appellant say to the Commissioner, look, these people have different circumstances and you should hear their cases separately. No application was ever made that the four who were involved in the 2 August meeting should be hived off from the others. It was accepted and the proceedings proceeded on the basis that the evidence in all cases were evidence in the others. So I make that point.

PN261

Returning to the decision at decision 136, Mr Kranendonk gave evidence that the term 'scab' referred to a person that is lower than the lowest, and that a scab was someone who performed the work when other who is on strike. The Commissioner took that into account and was entitled to given the nature of the submissions that he outlined earlier and his consideration of the overall circumstances of the dismissals.

PN262

At paragraph 137, two of the respondents – and here's the distinction I referred to earlier – Mr Miller and Burkhardt did not want to cross the picket line to perform the work of those undertaking protected action. Again, at 138, as I referred to earlier, Mr Miller and Mr Burkhardt both raised concerns about their families' safety, a factor that could be taken into account in the other matters area.

PN263

The Commissioner also, as part of the consideration of the other matters, refers to a matter that he'd taken into account, also at valid reason, that the respondents' contracts of employment did not require them to perform stevedoring tasks. That's at paragraph 139.

PN264

The Commissioner also referred to the fact that he was unaware of the practice of using managers to do stevedoring work as strike breakers since 1998, at 140. Complaints were made that there was some denial of procedural fairness we didn't get a chance to submit about industry practice, but as you can see from the long list of matters I'm taking you to, here's that material.

PN265

Procedural fairness matters will often not rise to the point of being error sufficient to interfere with first instance decisions, and my submission is that complaint about that one aspect of the decision, at paragraph 140, is not sufficient to warrant appellant intervention.

PN266

Continuing on the list that I'm getting close to finishing, you'll be pleased to know, that had Mr – this is at paragraph 143 – had Mr Miller and the other applicants crossed the picket line to perform the stevedoring work, then they would have been subjected to derogatory verbal barrage of they're scabs, either at work or in their private lives. That was a finding that was open to the Commissioner.

PN267

Then the Commissioner deals with the confusion and ambiguity of what was said at the meetings, the earlier findings that I (audio malfunction).

PN268

VICE PRESIDENT CATANZARITI: Sorry, Mr Slevin, you've gone silent again. Mr Slevin, if you can hear me, you might have to - - -

PN269

MR SLEVIN: As I said there's - - -

PN270

VICE PRESIDENT CATANZARITI: Mr Slevin?

PN271

MR SLEVIN: - - - speaks for itself.

PN272

VICE PRESIDENT CATANZARITI: Mr Slevin, just one minute. We lost you for a moment. Can you hear, Mr Slevin? We're going to try and get Mr Slevin in by phone, because he's almost finished his submissions. We'll try that technology. Thank you, Mr Slevin.

PN273

MR SLEVIN: Thank you. I think from the message I got from my instructor I was just concluding the other matters issues. I can indicate that I'll be brief, because my focus here is to direct your attention to the decision (audio malfunction) inadequate consideration has been given in the appellant's submissions to what was actually decided by the Commissioner.

PN274

I was around paragraph 140. The Commissioner was unaware of the practice of using managers to do stevedoring work as strike breakers since 1998, and makes the point that that's one finding that's complained about in the natural justice sense, but it's only one of very many findings, and it's not the type of finding, if the Commission were to conclude that there was no opportunity to make any submissions on that particular finding, the next question is, well, was that a material error, and if it wasn't material, (audio malfunction) - - -

PN275

VICE PRESIDENT CATANZARITI: Mr Slevin, I think we're going to have to continue this by phone, because again we can't hear you. We'll get you to dial in by phone. I'll organise that.

PN276

MR SLEVIN: I think I'm on the line now, Vice President. Are you hearing me?

PN277

VICE PRESIDENT CATANZARITI: Yes. Thank you, Mr Slevin. You were on paragraph 140 and you were coming towards the end, so keep going. We can hear you.

PN278

MR SLEVIN: Thank you, Vice President. My apologies for this. I don't know what's happening. So 140 was the question of being aware of using managers to do stevedoring work, and the point being made was if the Full Bench is of the view that that one finding was a finding that the appellant did not have an opportunity to make submissions on, that's not the end of the matter. The next question is, was that a denial of procedural fairness that was material in the exercise of the ultimate discretion. Our submission on that is that clearly the exercise of the ultimate discretion turned on many factors, and that one factor was not a determinative factor or a material factor in the ultimate exercise of the discretion.

PN279

The next matter, and there are only four others, was that – and this goes to the question of wishing to cross the picket line, and the Commissioner made findings that if they did so they would be subjected to derogatory verbal barrage as scabs, either at work or in their private lives. That's at paragraph 143. That was a relevant consideration open to the Commissioner.

PN280

Reference was made to the confusion and ambiguity at the 29 July and 2 August meetings, and that that continued in the correspondence that I've referred to that followed the suspensions and the show cause process throughout August and September, the respondents continuing to say that it was unsafe for them to perform the work, whilst the appellant continued with the line that they just wanted the respondents to return to work and do their jobs. The respondents did not take the opportunity to clarify this misunderstanding, and that's at paragraph 144.

PN281

And then the criticism of the appellant's communications being poor was another consideration. The failure to communicate its plan for the work during the industrial action, and it did not consult with the managers about its plan, and the meetings were brief, the 29 July and 2 August meetings in particular, and consultation was restrictive and vague. That's the finding at paragraph 146.

PN282

The finding at 147 that the respondents did not repudiate their contracts of employment in the Commissioner's view, as they were prepared to work, was open to the Commissioner, and it's explained at paragraph 147. There appears to be some challenge to that finding in the appellant's appeal, but there's no particularity given as to why that finding was wrong on its face. It seems to be a finding that was open; no repudiation in circumstances where the respondents were repeatedly saying, either in the meetings, and certainly in their correspondence before being dismissed, that they were ready, willing and able to perform the shift managers work.

PN283

In terms of addressing the matters raised by my friend this morning, I'm content to rely on the written submissions on those matters.

PN284

The question of trust and confidence, it was said there was no cross‑examination of Mr Kranendonk in relation to that. Cross‑examination at paragraph numbers 2600 and oral submissions made before the Commissioner at paragraph number 748 of the transcript go to that issue. Mr Kranendonk was asked along the lines of – without prolonging this by reading it to you – but was asked along the lines of: well, Mr Kranendonk, you appear in the Commission often, that's the case, isn't it? He agreed with that, and that if there was a decision of the Commission that found that your dismissals here had been unfair you'd be able to wear that, wouldn't you, and he essentially agreed with that proposition.

PN285

So the conclusion the Commission made in relation to trust and confidence, as colourful as it might be, was based on his consideration of the evidence, and that consideration included consideration of the cross‑examination that occurred at that point.

PN286

In any event, the principles that are referred to on reinstatement by the Commissioner do not require the appellant to have (indistinct) cross‑examination abandoned any claim as to trust and confidence. That's not what the authorities suggest. What the authorities suggest is that such a claim should be regarded carefully by any tribunal, that the onus of establishing the bona fides of such a claim lay with the person making the claim, and on that basis the Commissioner was quite entitled to make the finding he did in relation to the impact of that claim on the exercise of discretion when it came to awarding remedies.

PN287

Unless there's anything further, those are the submissions that I make on behalf of the respondents. As I say, I rely on the written submissions, but I really wanted to focus on the decision of the Commissioner because of the nature of the appeal that we say is really cavilling with the many findings made by the Commissioner, in circumstances where those findings were available on the evidence.

PN288

Yes, it's the case that not every submission was considered expressly by the Commissioner, and there were many submissions made by the respondents that weren't considered expressly by the Commissioner. The Commissioner did, as I said when I commenced this address – did something that the tribunal is expected to do, as is referred to in the decision of Buchanan J that was accepted by other members of the Court in the Lawler case.

PN289

So, in those circumstances, the criticism that not everything we said and not every contest in the evidence was considered should be considered in that light, and that the Commissioner went to the heart of the matter and decided on what basis that he considered the application should be determined.

PN290

Much was made about submissions made on credit. Those submissions arose at the end of the oral hearing. My learned friend requested the opportunity to provide submissions on the evidence that had arisen in the transcript. He said that he would provide brief written submissions on that point. You will see the nature of the submissions were far from brief, and they're in the appeal book at page 1181. There's a long table there seeking credit findings against all of the respondents on the most minute issues: slips of expressions in the witness box, on matters that simply were not material in the proceedings but were said to establish that everything that the respondent said, or rather nothing that the respondent said could be believed.

PN291

That sort of broad finding of credit a) was not available in the evidence, but b) is not the sort of finding that the tribunal should make, and submissions were made in that regard on behalf of the respondents and they're found at page 1200 and following of the appeal book. I don't want to recite those, but I rely upon them in response to that submission about the failure to make credit findings. The nature of the credit findings sought were such that they would not assist the Commissioner in his ultimate consideration of the applications before him.

PN292

Unless there's anything further, they're the submissions on behalf of the respondents.

PN293

VICE PRESIDENT CATANZARITI: Thank you. Anderson DP, any questions?

PN294

DEPUTY PRESIDENT ANDERSON: No. No further questions, Vice President.

PN295

VICE PRESIDENT CATANZARITI: Thank you. Hampton C?

PN296

COMMISSIONER HAMPTON: Yes. Just one question, Mr Slevin. If I can direct your attention to paragraph 158 of the decision at first instance?

PN297

MR SLEVIN: Yes.

PN298

COMMISSIONER HAMPTON: On face value there does appear to be some tension between the finding that's made there and the findings at 110, and otherwise it appears to be accepted that there were some directions to perform the work in the yard. Look, I think, speaking for myself, it would be helpful to understand the context in which that finding was made. It refers to, 'I accept the submissions from the applicants that they did not refuse,' et cetera, 'because no instructions were actually given to the shift managers.' Are you able to assist me in terms of the context for that submission?

PN299

MR SLEVIN: I am, and the context is found in the decision. At paragraph 46 of the decision, you will see the Commissioner is setting out the respondents' submissions, and at 47 the Commissioner says:

PN300

The Respondent argued that contrary to the Applicants' claims, the duties the Applicants were required to perform did not require a Verification of Competency (VOC) in order to be performed. It submitted that if the Applicants had been directed to do any specific duties which required a VOC, they would have received the necessary training for those duties on site. However, the Respondent also noted that most duties that would have been performed were within the Applicants' skillset and competence. Further, the Respondent submitted that it never reached the stage where the Applicants were individually directed to perform specific tasks, as they had already refused to work before specific tasks were actually allocated to them.

PN301

That's the submission made by the respondent. In reply to that submission, the respondent at paragraph 79 said – and you'll see down at page 74 of the appeal book:

PN302

The Applicants submitted that in its submissions, the Respondent conceded that it did not give specific instructions as to tasks required of the Applicants. The Applicants submitted that while this was not the case for Messrs Iki, Brazel, Pedder and Butsenko who were told to consolidate the yard on 2 August 2021, the concession suggests that the Applicants were not stood down for refusing a specific direction. The Applicants submitted that in those circumstances, even if a direction was made in general terms, it cannot be said that the direction was reasonable, as the unreasonableness arises because the direction lacked specificity. The Applicants submitted, therefore, that they did not refuse to perform any particular direction to perform a task or work in a certain way, but were stood down because they refused to perform duties which involved performing stevedoring duties.

PN303

And then the Mt Arthur case is referred to. Commissioner, what transpired was – or the respondent said, look, the direction that they gave us, such as we divined it from the unclear directions given at the meetings, which were sort of: are you in, in relation to the protected industrial action, which people understood: will you do the stevedoring work of the striking workers.

PN304

That very general request of them could be the only direction that they would have been given at those meetings, because at no stage did someone go to the one of these shift managers and say, Mr Brazel, I want you to go out and drive that forklift and to assist in clearing the yard for the work that is to be done. No one got to that point, and what the respondent said in those circumstances was, well, that's an unreasonable direction to not get to that level of specificity. It's not of the type of direction that is described in the dot points in paragraph 81 of Mt Arthur that are set out in paragraph 79.

PN305

So that was the nature of the debate there, and so when you read paragraph 158 when the Commissioner is considering the question of unfairness, the Commissioner having already found that, look, really the direction was to do stevedoring work, but it was also unreasonable, as the applicants, or the respondents in the appeal, submitted that, well, these directions were of such a broad nature that it was unreasonable to dismiss someone for refusing such a broad direction. That's the distinction between the finding at 110, which is a finding about valid reason, and the finding at 158, which in my submission is a finding that goes to given the (indistinct) submissions developed are other matters. So that's the distinction, Commissioner.

PN306

COMMISSIONER HAMPTON: Yes. Thank you, Mr Slevin. I understand the point you make. I appreciate that. Thank you.

PN307

VICE PRESIDENT CATANZARITI: I think we've lost Mr Slevin again for your reply, Mr Tracey, but I'll just check. Mr Tracey, how long do you think your reply is going to be?

PN308

MR TRACEY: Five minutes, Vice President.

PN309

VICE PRESIDENT CATANZARITI: Thank you, Mr Slevin. We're about to hear from Mr Tracey.

PN310

MR SLEVIN: Thank you very much, Vice President.

PN311

VICE PRESIDENT CATANZARITI: All right. We'll hear from Mr Tracey now. Thank you.

PN312

MR TRACEY: Thanks, Vice President. As I've indicated, I'll be very brief. Just dealing with that last matter that my learned friend was addressing, the submission at paragraph 79 – it's recorded at paragraph 79, and which my friend says is being accepted by the Commissioner at 158, is a submission directed to section 387(a), that is, valid reason, and not 387(h). That just serves to highlight, in our submission, that the inconsistency between 158 and 110 is one that is just irreconcilable.

PN313

Then I just wanted to address and refer the Commission to some cases that arise out of my friend's oral submissions. He referred to the Coal and Allied decision and the role of the Commission, which it describes. That submission does not give licence, in our submission, to referring to things such as 'folklore,' without any ability for the parties to understand what's meant by that, let alone make submissions about it.

PN314

There's then my friend's reference to – suggesting that the earlier part of the decision in which, with respect, the Commissioner essentially recites, often verbatim, written submissions of the parties, that that is somehow said to be part of the decision, and perhaps if I understand my friend's submissions even to incorporate findings. It doesn't. Setting out competing submissions is not sufficient. The decision‑maker has to engage with those submissions, and in that regard we rely upon a case of WS v Gardin [2015] WASC 97; 48 WAR 494 at paragraph 169, judgment of Mitchell J.

PN315

Further to that, we also rely upon Bradley v Matloob [2015] NSWCA 239 at paragraph 75, decision of McColl J, where McColl J observes that a judge is:

PN316

obliged to address the 'central controversies put up for resolution by the parties' or 'engage with, or grapple or wrestle with, the cases presented by each party.'

PN317

And then the third decision which arises from my friend's reference to paragraph 83 of the decision, which is similar to paragraph 163 of the Commissioner's decision, which is to the effect that he has taken into account all the submissions, et cetera, I'll refer you to the very often cited case of Kahn v Minister for Immigration and Ethnic Affairs [1987] FCA 457 at paragraph 25, decision of Gummow J, cited hundreds of times, where his Honour says:

PN318

what was required of the decision maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy.

PN319

And this is the key part:

PN320

The assertion by a decision maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense

PN321

And then very briefly, it was raised by my friend that my client had accepted that the six matters should proceed to be heard together, and there's no dispute about that. That was, in my respectful submission, a sensible approach given the resources of the Commission, and it didn't lead to any submission on my part that the six matters should not be distinctly considered, and I refer to transcript 2819 where I – I won't read from it, but this is one example of where I made the point, which was consistent with points made by my learned friend that the circumstances of Mr Miller and Mr Burkhardt, in particular, needed to be looked at on their own terms, and in this decision we just have a distinct absence of any findings about the meetings with those respondents and what they said and what was said to them.

PN322

Unless the Full Bench has any questions of me, noting that we'll provide an email shortly to your Chambers, Vice President, answering Hampton C's questions about references to transcript, that's all I propose to say in reply.

PN323

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

ADJOURNED INDEFINITELY [12.57 PM]