Fair work cases; redundancies and redeployment

The Fair Work Act provides that it is a complete jurisdictional defence to an unfair dismissal claim that the termination of employment was a genuine redundancy. Sec 389 of the Act provides that a person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person or persons to be redeployed within the enterprise or the enterprise of an associated entity of the employer.

It is a legitimate question when determining this issue whether an employee or employees could have been redeployed into positions the being undertaken by contractors. These passages from a recent Full Bench case illustrate the issue well.

“The requirements of s.389 of the FW Act are clear. In order to determine, in this case, if the dismissals were genuine redundancies the Commissioner was firstly required to make findings in relation to whether the person’s work was no longer required to be performed and if the Appellant had complied with any consultation obligations. These matters are not in dispute and the appropriate findings made.

[33] Second, the Commissioner was required to determine if it would have been reasonable in all the circumstances for the person to be redeployed. If the answer to this question is “yes” the dismissal cannot be a genuine redundancy.

[34] In determining if redeployment was reasonable in all of the circumstances the Commissioner needed to consider if the Respondents could have been redeployed into work being undertaken by contractors (the first appeal decision having found this was a legitimate inquiry to undertake). The first appeal decision set out those matters that should be considered in reaching a conclusion on this question.

[35] To make the statutory finding as to whether it was reasonable in all of the circumstances to redeploy the Respondents into such work, anterior questions arise first of whether insourcing the work of the contractors in question is feasible and if it is then whether redeployment of all or some of the Respondents was possible could then be considered.

[36] Having answered these two questions the Commissioner should then move onto the statutory questions to be answered – whether redeployment was reasonable in all of the circumstances and then, had the Respondents been unfairly dismissed.

[37] This approach provides clarity to the matters which require consideration as outlined in the first appeal decision and enables proper focus on relevant matters leading up to the statutory considerations. We acknowledge however that these first two matters – feasibility of insourcing and the possibility of redeployment (which, by necessity involves a broad assessment of skills) – may become intertwined.

[38] In deciding if the work of contractors could or should be insourced the appropriate matters to consider (arising from the first appeal decision) includes the following:

  • The history of contracting the work in question
  • Any requirement to change the employer’s business strategy
  • The degree of control over the work of the contractor by the employer
  • The length of the contract period left to run
  • The rights of third parties
  • That positions cannot be created where there are none
  • Displacing existing occupants of positions may not be appropriate.

[39] It could only be that having made a finding that insourcing was feasible by a consideration of these factors as is relevant to the particular case (and there may be other relevant considerations), the Commissioner could then turn his mind to whether redeployment was possible. This would necessarily involve a consideration of the nature of the work to be insourced and the skills of the workers being considered for redeployment.

[40] It should also be noted that, just because the workers to be made redundant could have undertaken the work of the contractors because they have the necessary skills etc, is not a sufficient basis by itself on which to conclude that it would have been feasible to insource the work of the contractors. That would improperly conflate two matters requiring separate consideration.

[41] Following a consideration of the matters associated with the feasibility of insourcing work of contractors and a determination if the workers had the necessary skills to undertake that work, the Commissioner needed to return to the question he was required to answer – that is, if it was reasonable in all the circumstances to redeploy the workers concerned. Again, the statutory question to be answered should not be confused with those matters that must be decided on the path to determining this question.

[42] We would also observe that the question of whether redeployment is reasonable in all of the circumstances is a question to be determined as at the time of the dismissal. It follows from this that the question of whether insourcing was feasible is a question also to be answered at the time of the dismissal.

[43] We now turn to consider the grounds of appeal.

Appeal grounds 1 and 2

[44] The Appellant submits that the Commissioner at first instance applied an incorrect test in deciding if redeployment was reasonable in all of the circumstances. In this respect it says that the Commissioner “erroneously applied a test” which is a combination of:

  • Whether the contractor work was specialist work.
  • Whether terminating the employment of employees and keeping contractors was reasonable.
  • Whether it was feasible for the Appellant to insource the work .
  • Whether the original decision to outsource the belt work was fair.

[45] Further, the Appellant submits that there are a number of matters the Commissioner should have, but failed, to take into account in determining if redeployment was reasonable in the circumstances.

[46] We do not agree that the Commissioner applied the wrong test or that he failed to take into account relevant considerations in reaching his decision.

[47] There were a number of relevant matters for the Commissioner to consider before deciding if redeployment was reasonable in all of the circumstances. We set out some of those in the first appeal decision. These were set out by the Commissioner at paragraph [66] of the Decision. We do, however, consider it worthwhile to reiterate that:

  • There are no binding rules in the application of s.389(2)(a) and the reasonableness of redeployment must be determined “in all the circumstances” taking into account the available work; 31and
  • There is no binding principle established in relation to the consideration of the work of contractors and redeployment to such work. 32

[48] In light of these findings it is difficult to see how the scope of the Commissioner’s review, save for some matters mentioned below, could be in error. It was incumbent on the Commission to consider all of the relevant circumstances.

[49] Whether it was reasonable to insource the work is clearly a relevant consideration and we do not consider the Commissioner fell into error in this regard.

[50] A full and fair reading of the Decision indicates that at paragraph [68] the Commissioner turned his attention to the matters identified in the first appeal decision as being relevant matters to consider in deciding if insourcing was feasible. The Commissioner considered other matters he believed relevant to the question he had to determine, including whether Mentser and Nexus were specialist contractors (at paragraphs [70]-[89]).

[51] The Commissioner then concluded (at paragraphs [91], [95] and [96]) that it was feasible to insource (some of) the work of Nexus and of the four 2-man crews performing belt work for Mentser. In reaching this conclusion it is clear that the Commissioner did consider those matters identified in the first appeal decision as being relevant to the question of the feasibility of insourcing.

[52] We do not agree with the submissions of the Appellant that the Commissioner’s consideration of those matters he was directed to in the first appeal decision was done “for the purpose of dealing with them to set them to one side and deny them relevance where they do not fit comfortably with this overall determination, that it was not reasonable for Peabody to not insource the work.” 33

[53] A reading of the Decision as a whole reveals that the Commissioner placed substantial weight on a number of the matters we identified in the first appeal decision as being relevant. In particular weight was clearly given to:

  1. The length of the contracts;
    2. The Appellant’s business strategy;
    3. Whether the work of the contractors was specialist work; and
    4. To a lesser degree, the effect on the contractors if the work was insourced.

[54] Whist the Commissioner considered other matters outlined in the first appeal decision it is apparent that they were not attributed great weight given the brief review given to them. However, the factors identified in the first appeal decision will have varying relevance depending on the particular set of factual circumstances. It would be wrong to think that the matters identified are the factors that must be forensically evaluated and weighed in each and every case.

[55] To the extent it may have made for a more concise decision to have indicated very briefly the factors the Commissioner may not have considered as being of great relevance, that the Commissioner has not done so does not disclose appealable error. That the weight the Commissioner may have attributed to each factor may have varied is not evidence, in and of itself, of error.

[56] Further, the Commissioner cannot be found to be at fault because he did not articulate specific consideration of all of those matters as identified by the Appellant in ground 2 of the appeal.

[57] There are two contractors relevant to the consideration of the matter before the Commission – Mentser and Nexus – and it is appropriate, as the Commissioner did, to consider these separately.

[58] With respect to the work of Mentser, a review of the relevant evidence, in particular that of Mr Andrew Davey, Mr Andy Withers and Mr Kain Abbot strongly supports the conclusion that the findings of the Commissioner (except in relation to one matter we come to below) were reasonably open to him and that he took into account relevant matters in reaching his decision.

[59] Mr Abbot and Mr Withers both gave evidence that the Appellant must agree to the work orders and the Mentser employees report through staff of the Appellant. The Mentser contract had 3 years to run (from 2020) with a further 2 year option. It is apparent (given the distinction drawn from the decision in Stickley) that the Commissioner considered the length of the contract to favour insourcing.

[60] While the summary of the evidence is brief on the business strategy in relation to the Mentser contract, a review of the evidence of Mr Abbot and Mr Withers indicates that many of the matters the Appellant says should have been taken into account are encapsulated in the identified drivers of the strategy – that is the 2019 fire and what Mr Withers says contributed to the fire, that being the “ad hoc approach” to the belt maintenance. 34

[61] The matter in relation to the business strategy the Commissioner does not appear to have addressed in his decision is the apparent cost saving of $600,000 to the Appellant (although it is not identified in the evidence of Mr Withers over what period this saving operates) by outsourcing. The Commissioner though had little evidence of substance before him on the subject and it is not clear how the saving was quantified, whether it was contingent on other factors, or the period over which the saving might be realised.  We note as well, that, associated with this, there does not appear to be any particular contractual penalty associated with exiting the contract.

[62] The Commissioner then considered the skills of Mentser employees and the effect on those employees of the work being insourced. While we may not agree on the way the Commissioner may have expressed his views, we do not consider that the Commissioner has failed to take into account relevant matters. The skills of the Mentser employees (as indicated by the training undertaken by them) was highly relevant to a determination of the feasibility of insourcing the belt work. It is apparent form the Commissioner’s reasoning at paragraphs [72]-[75] that the Commissioner considered any skills requirements, if the work was insourced, could be met primarily through on the job training. The evidence of Mr Abbot that not all employees had completed the Certificate III in Polymer Processing suggests the training was not necessary to enable the belt work to be performed. 35

[63] In reaching his conclusion as to whether Mentser is a specialist contractor the Commissioner considered the work required to be done by Mentser, the training given by Mentser to its employees and the skills of the redundant employees. Further, the Commissioner considered the Mentser training which he assessed, based on the evidence, as being critical to Ms O’Brien’s reasons for determining the Mentser work to be “specialist” work. While we do not agree with the Commissioner’s dismissal of the training of Mentser employees because it is not accredited or transferable 36 (save for the Certificate III in Polymer Processing) the matter important to the Commissioner’s consideration is that very little of the training is delivered in the classroom with the majority being delivered on the job.

[64] The Commissioner then, at paragraph [92] of the Decision, considered the skills of the employees seeking redeployment, found they had the necessary skills or that they could acquire the skills through on the job training. Having found the insourcing of the Mentser belt work feasible and considered the specialist nature of that work and the skills of the employees concerned, the Commissioner determined redeployment to the Mentser work (insourced) was reasonable in all of the circumstances. That the Commissioner did reach this conclusion is reasonable on a fair reading of paragraph [102] of the Decision. On this question the Commissioner did make the necessary statutory finding.

[65] With respect to the Nexus work, the approach adopted by the Commissioner is not dissimilar to that taken with respect to the Mentser work. A review of the evidence in relation to the Nexus contract (that of Mr Killian Grennell, Mr Michael Carter and Mr Davey) indicates that it was open to the Commissioner to conclude that not all of the Nexus work was specialist work. This is especially so in relation to the secondary support work and other work which, on Mr Grennell’s evidence, is not specialist work. 37 This is supported by the evidence of Mr Carter (who was not cross examined on this matter and whose evidence was accepted by the Commissioner). Mr Grennell’s evidence is that the secondary support work was undertaken by about 8 Nexus employees.

[66] On the basis of the evidence, the conclusions reached by the Commissioner in relation to the business strategy and specialist nature of the Nexus work were reasonably open to him.

[67] As to the skills of the employees seeking redeployment, at the hearing of the appeal the representative of the Appellant, said that whilst not accepting without question the skills of the employees concerned, the Appellant did accept the skills and experience of the employees “which would have been valuable and which would allow them to do some of the work immediately, which was carried out by Mentser, and…to a much more limited degree…for Nexus…” 38 Having then considered the evidence as to the skills of the employees who sought redeployment, the Commissioner concluded, at paragraph [104], on a fair reading, that redeployment to some of the Nexus work (once insourced), was reasonable in all of the circumstances.

[68] The determination of the feasibility of insourcing work being performed by a contractor is one step required of the Commission in reaching a final conclusion as to whether redeployment was reasonable in all of the circumstances. It would be wrong however to conclude that the feasibility of insourcing was the only consideration. The Commissioner clearly considered, in his reasons, the skills of the Respondents and their capacity to undertake the work of the contractors. He considered the specialist nature of the work and scope of the work of the contractors and the training necessary to do the work. He considered the “operational impracticality of insourcing” but did not consider this insurmountable. Taking all of these matters into account the Commissioner reached the conclusion he did. The Commissioner was not narrowly focussed in his investigation and, having considered all of the circumstances, including the feasibility of insourcing, concluded that redeployment was reasonable in all of those circumstances.

[69] As to the ground that the Commissioner failed to take into account the distressed financial state of the mine, we do not see that the Appellant prosecuted its case that redeployment was not reasonable on this basis but rather that the financial situation was the driver of the restructure (which does not seem to have been dispute). It is, therefore, difficult to understand the Appellant’s precise appeal point. The Commissioner has not found contrary to the evidence of Ms O’Brien as to the financial state of the mine and it can reasonably be accepted that the Commissioner was cognisant of this information in reaching his decision in relation to redeployment matters.

[70] The Appellant has, otherwise, with respect to ground 2 of the appeal in particular, provided an extensive list of matters to which it says the Commissioner did not give consideration. Whilst there are a number of matters on this list that may not have been specifically dealt with in our analysis above we do not consider these to be material considerations such that a failure to consider them manifests error on the part of the Commission.

[71] We find no appealable error of the approach and range of considerations of the Commissioner. Appeal grounds 1 and 2 must therefore fail.

Appeal Ground 3

[72] This ground of appeal asserts that the Commissioner was in error in deciding that the impact of insourcing on the relevant contractor was beyond the purview of the Commission and that the Appellant had an obligation to its employees and not those of the contractors meant the impact of an insourcing decision was irrelevant or a subordinate consideration. 39

[73] We do not agree that the contracts between the Appellant and Mentser and Nexus and the need for resolution of any contractual dispute was an irrelevant consideration to the determination of whether insourcing was feasible as suggested in paragraph [68](d) of the Decision. Clearly, financial or other penalties that might apply with the early termination of an existing contract are highly relevant as to the feasibility of insourcing work. The Commissioner should have directed his attention to whether there was anything in the contractual relationship between the Appellant and the respective contractors that was an impediment to insourcing the work. If it is that the Commissioner did give consideration to this matter his reasons for dismissing it or finding it not relevant is unclear.

[74] Likewise, to the extent the Commissioner did not consider the effect of insourcing on employees of the contractor was relevant to the matter before him, he was in error. In the first appeal decision the Full Bench indicated that “displacing existing occupants of positions may not be appropriate.” The Commissioner was addressing this matter at paragraph [68](f) of the Decision. To the extent it may be seen that the Commissioner dismissed this as an irrelevant matter we do not consider the reasons given disclose why he reached this conclusion. The inquiry we found was required in the first appeal decision is not who may have applied for relief from unfair dismissal and against which employer, but how the insourcing may have an effect on the breadth of workers impacted by the decision. It was not suggested in the first appeal decision that the task confronting the Commissioner in deciding if insourcing work from a contractor was an easy task – reaching a conclusion requires a balancing of a range of factors which must be weighed on the path to reaching a decision. The Full Bench in the first appeal decision did not say that this factor was determinative of the matter, and we accept that there may be circumstances where it is not relevant. By not giving apparent consideration to this matter the Commissioner failed to consider the totality of issues before him. The responsibility on the Commissioner was to consider the issue if it was relevant and set out his reasons for reaching his conclusion.

[75] However, we do not consider that the way in which the Commissioner dealt with either issue raises sufficient doubt as to the correctness of the Decision when considered as a whole such as to provide grounds for the granting of the appeal. We accept that the Commissioner should have turned his mind to matters under each of these items and that he failed to do so or articulate sound reasons for not doing so. While constituting an error on the Commissioner’s part, we are not satisfied that the appeal should be allowed on this ground alone. We reach this conclusion as the inquiry of the Commissioner is wide ranging with many factors being taken into account with weight given to each of these as seen appropriate. These two items were not matters of great weight in the evidence or submissions of the Appellant before the Commissioner below such that the Decision should be set aside on this ground.

Appeal ground 4

[76] This ground of appeal asserts that the Commissioner made a number of factual errors. The notice of appeal lists 15 factual errors. In its written submissions the Appellant included a list of 19 errors although at the hearing of the appeal relied, ultimately, on 13 factual errors which the Appellant says are significant errors. 40 The Appellant submits that these errors are such that the Decision is unsound and cannot stand.

[77] For this ground to succeed the decision must be found to contain a “significant error of fact.” 41 As the Full Bench said in Esso for an error of fact to be “significant” it must vitiate the ultimate exercise of discretion. For the reasons given below we do not consider the errors of fact identified by the Appellant to be significant in this meaning.

[78] We have identified the errors of fact posited by the Appellant in its submissions. For the purpose of brevity in this decision we have not repeated the submissions of the Appellant on each point here but note that we have had regard to the written submission of the Appellant and Respondents in reaching our conclusions.

  1. Paragraph [68](c) – gas pipe installation and secondary support work of Nexus meant not all of their work was not specialist or work of a project nature

The Commissioner’s finding on this point is based on evidence of Mr Grennell that secondary support work is not specialised 42. On this evidence we find no error of fact in the Commissioner’s conclusion.

  1. Paragraph [68](e) – no evidence of the benefits of the AQF3 in Polymer Processing

The Commissioner did not say that there was “no evidence” of the benefit of the Certificate III qualification. He said he was “unsure of the relevance” of the qualification and made an observation as to the lack of evidence. A review of the evidence of Mr Abbott was that the training was directly relevant to the work of Mentser 43 and in this respect there is apparent relevance but the evidence was also that not all belt technicians had the training and there was no evidence of the content of the training. While we accept the evidence is that the training is relevant there is no evidence that the training was necessary for the operator function. This does not constitute a significant error.

  1. Paragraphs [72] and [102] – principal reason why Ms O’Brien considered Mentser to be a specialist contractor was the Mentser Specialist Training

Ms O’Brien’s evidence is that “The work being performed by Mentser is, in my view, specialist work. The work being performed is belt cleaning and belt improvement. I am aware that Mentser’s employees have received specialist in-house training in relation to the skills required to perform the work.” 44 No other evidence is given by Ms O’Brien as to why she considered Mentser to be a “specialist contractor” beyond the training mentioned in the same paragraph as her comment about them being a “specialist contractor”.

We have dealt with the training issue elsewhere in this decision and do not repeat those matters here.

We find no error on the part of the Commissioner.

  1. Paragraphs [74], [75], [93] and [102] – that the training provided by Mentser to its employees was ‘not quality training’

We have dealt with this issue elsewhere in the decision. We agree that the Commissioner’s dismissal of the training because it was not portable was an error. However, we do not consider it a significant error of fact. The Commissioner’s conclusion needs to be read in context of conclusion that much of the skills acquisition was from on-the-job training, a not uncommon form of training.

  1. Paragraphs [76] and [97] – that Peabody would easily be able to replicate the information in the Raven reports

The ability to replicate the reports was a conclusion of the Commissioner based on his observation that a Deputy does a statutory inspection report per shift – a matter with which issue is not taken – and that these reports are retained, and his observation at paragraph [97] that if the Raven reports were not available the Deputy reports would be. The comment with respect to Peabody’s ability to source similar software it seems to us was no more than a reflection of the skills and abilities and size of the Appellant. We do not see any error of fact but, even if there is, it is not a significant error.

  1. Paragraph [85] – that Peabody employees inspect the belts 700% more than Mentser employees each week

Mathematically the Commissioner was correct in terms of the formal belt inspections carried out by Mentser for the purpose of the Raven reports compared to the statutory inspections carried out by the Deputy. The Appellant’s reading of the paragraph is too narrow. To the extent operators inspect the belts as part of their duties it may be anticipated that, should employees of the Appellant be redeployed to this work, they too, would carry out such “inspections”.

  1. Paragraph [93] – no significant training or retraining required to obtain competency

The written evidence of Mr Withers was that employees of the Appellant “would need to undertake a period of training and upskilling to become competent in all of the tasks required of Mentser’s employees.” Cross examination of the Respondents below as to their assessment of their skills was minimal in this regard such that the conclusion of the Commissioner as to retraining required for them was open to him.

As to the question of self-supervision we note our comments in the first appeal decision (at paragraph [94]) and remain of the view that no appealable error has been demonstrated on this point.

With respect to both the Nexus and Mentser work we note the skills assessment of the Respondents and that the Appellant did not challenge the Respondents on those matters below.

As the Appellant representative acknowledged during the appeal hearing it was not in contention that the Respondents were “skilled underground miners” with the ability to “over time and with appropriate familiarisation” pick up some, and perhaps many, of the skills relevant in the Commissioner’s decision.

  1. Paragraphs [95], [98] and [104] – local Deputy will simply provide required supervision for insourced Nexus work

We agree that the evidence was that existing Nexus and Mentser work was supervised by Nexus and Mentser supervisors. The Commissioner did not find otherwise. The evidence in support of this alleged factual error does not go to the error identified. We find no appealable error in respect to this matter.

  1. Paragraphs [97] – that the employees could easily self-supervise themselves in relation to the Mentser work

We accept that the evidence of Mr Withers is that, until the Appellant’s workforce were appropriately skilled, the crews would not be able to self-supervise and this would mean some additional supervision from within the Appellant’s workforce. 45 This evidence was given after the first appeal decision. For this reason the Commissioner’s conclusion would appear to be one not reasonably open to him as definitively as it has been made. We accept that the Appellant’s workforce could self-supervise after a period of upskilling but accept this may not be immediate. While this is an error we do not consider it significant such that it effected the Decision of the Commissioner.

  1. Paragraph [102] – that some of the employees “would have far more competency to perform the Mentser scope of work then some of the Mentser employees”

We accept that the Commissioner made this finding on the basis of the varying skill levels of employees of the contractors and of the Appellant. We accept that some of the employees of Mentser were still being trained. 46 This would suggest that at least some of the Respondents have more experience than some of the employees of the contractors. To this extent the conclusion of the Commissioner was reasonably open to him on the evidence.

The Commissioner does not suggest that all of the Respondents had more skills than all of the employees of the contractors. To the extent that some employees of Mentser had a Certificate III in Polymers then they would have skills beyond those of the Appellant’s employees. The extent to which such skills may be absolutely necessary is a different question.

  1. Paragraph [103] – the 2019 conveyor fire was the catalyst which de[p]rived 8 or 9 operators of their livelihood and that the decision to outsource the work was “unfair and unreasonable”

We have dealt with this comment by the Commissioner earlier in this decision. Suffice it to say there is no evidence to support a conclusion that the Respondents themselves were deprived of employment because of the fire. It is apparent that the Commissioner viewed the decision to outsource the belt work as resulting in 8 or 9 fewer operator provisions available with the Appellant. In any event we note that it is an observation of the Commissioner and not a matter that goes to the matter to be determined. To the extent it might be portrayed as an error of fact we do not consider it to be significant.

  1. Paragraph [104] – that Nexus was not performing project work and that “the Nexus project was due to finish around June 2020”

It is evident the Commissioner was referring to “non specialised work” as he referred to the “large proportion of the scope of work of Nexus is not specialist work.” The Commissioner has, by this time, had regard to the “genuine operational reasons” of the Appellant and has determined that insourcing is feasible. That the Appellant would prefer, in having regard to such a matter, that the Commissioner had reached a different finding is not to the point and does not identify an error of fact.

The employment of supervisors was dealt with earlier in this decision and is do not repeated here.

That the employees could supplement other areas of mine work is clearly no more than an acknowledgement that the Respondents (or others performing this work for the Appellant) would have a breadth of skills in mine work that they could work in other areas of the mine. We note that an observation is not a finding of fact and that, in any event, this matter was not decisive in the Decision and hence would not be a significant error of fact.

  1. Paragraph [104] – no identifiable reason why the Applicant employees could not be performing the Nexus work, could work under the supervision of the local Deputy and could supplement the Respondent’s workforce in other areas of the Mine without issue

It is evident the Commissioner was referring to “non specialised work” as he referred to the “large proportion of the scope of work of Nexus is not specialist work.” The Commissioner has, by this time, had regard to the “genuine operational reasons” of the Respondent and has determined that insourcing is feasible. That the Appellant would prefer, in having regard to such a matter, that the Commissioner had reached a different finding is not to the point and does not identify an error of fact.

The employment of supervisors was dealt with above and is not repeated here.

That the employees could supplement other areas of mine work is clearly no more than an acknowledgement that the Respondents (or others performing this work for the Appellant) would have a breadth of skills in mine work that they could work in other areas of the mine. Again, we note that an observation is not a finding of fact and that, in any event, this matter was not decisive in the Decision and hence would not be a significant error of fact.

Appeal ground 5

[79] This ground of appeal is that the finding in relation to the Mentser work was not a finding that a decision maker, acting reasonably, could have made and was hence a decision made in error. This ground of appeal is in relation to the Mentser contract only.

[80] As expanded in submissions, the Appellant takes issue with the Commissioner’s assessment of Mr Withers (paragraph [83] of the Decision), his dismissal of the Mentser training (at paragraph [102]) and his expressed view and criticism of the decision of the Appellant to outsource the belt work to Mentser following the 2019 fire (at paragraph [103]). The Appellant submits that these expressed views and conclusions of the Commissioner make the Decision unsound.

[81] We acknowledge the matters raised by the Appellant in relation to the Commissioner’s comments at paragraph [103] of the Decision and the criticism levelled at Mr Withers in the Decision at paragraph [83].

[82] We do not consider a fair reading of the evidence of Mr Withers supports a conclusion that he “has a problem with anyone questioning his decision to outsource the conveyor belt work”. Whilst the quote from Mr Withers’ indicates intemperate and unnecessary language in his evidence, it was one comment made at the end of a lengthy period of cross-examination and further questioning by the Commissioner. Mr Withers was certainly defensive of the decision taken by the Appellant to outsource the belt work but there is nothing in his evidence that supports a conclusion, as formed by the Commissioner, that Mr Withers had a “problem” with the questioning of that decision.

[83] We consider that the Appellant attempts to read too much into the comments of the Commissioner at paragraph [103] of the decision. We do not consider it was necessary for the Commissioner to make the observation he did in that it contributes nothing to the Decision, but we do not accept that it was a factor that informed the Commissioner’s ultimate conclusion. Rather, we accept it is an observation that the decision originally taken to outsource the belt work was not attributable to the skills (or lack thereof) of the employees at the workplace. This was a finding based on the evidence of Mr Withers. 47 We do agree that there is no foundation for the comment with respect to the outsourcing decision leading to 8 or 9 operators losing their livelihoods. This paragraph, or parts of it, however do need to be viewed in the context of two hearings, two extensive decisions and an appeal decision on the first decision. We agree that this case was not about the reasonableness of the original decision to outsource the work to Mentser. However, we do not consider that the reason for outsourcing or the defence of such a decision was a key consideration in the Commissioner finding that insourcing that work was reasonable in the circumstances.

[84] As to the Commissioner’s apparent dismissal of the training provided by Mentser, again the language may have been more carefully chosen by the Commissioner, but it is clear that the Commissioner sought to do no more than indicate that the provision of training to do the work does not make the work specialist work – a foundational issue in the Decision. We would add that even if the training was accredited or portable does not, of itself, make the work “specialist” work.

CONCLUSION

[85] In conclusion we would observe that there appears to be a typographical error in the Decision at paragraph [105] where (and is accepted by the Appellant and Respondent) it should read “…I am satisfied and find that the [Appellant’s] actions in terminating the [Respondents] and keeping either Mentser or Nexus was not reasonable.”

[86] Whilst the Commissioner did not explicitly state it in the Decision, we are satisfied that he considered that redeployment was reasonable in all of the circumstances and that, for all of the reasons given, the dismissals were not a case of genuine redundancy (as he does find at paragraph [108]).

[87] It is clear, from a reading of the Decision as a whole that the Commissioner considered the matters he was directed to in the first appeal decision. He considered whether insourcing the contracted work was feasible and the skills of the employees seeking redeployment and whether the employees had the skills necessary to perform that work before reaching the conclusion that redeployment was reasonable in all of the circumstances.

[88] Further, while we accept that there are some factual errors in the Decision we do not consider these to be “significant errors of fact” such that they demonstrate appealable error.

[89] While the ultimate conclusion that redeployment was reasonable in all the circumstances is not stated as clearly as it might be, it is implicit in the Decision. We do note that this Decision arose from our fist appeal decision and a second hearing with further evidence and submissions of the parties. This added to the lengthy period of time over which the matter has been heard and perhaps was a contributing factor to some lack of attention to detail in the Decision.

DISPOSITION

[90] We order that:

(a) Permission to appeal is granted.

(b) The appeal is dismissed.

(c) The file is retuned to Commissioner Riordan for further programming.

[91] In returning the file to the Commissioner the Full bench strongly recommends that the parties enter into discussions with a view to finding settlement of the applications. It is now in excess of two years since the terminations of employment with no timeframe for the final determination of the applications being apparent.

[92] Before the file is returned to the Commissioner for regular programming, to facilitate settlement of the application, the Commission can make a Member available to conduct a Member Assisted Conciliation. The parties should advise the Commission within 7 days of publication of this decision as to whether or not they wish to have a Member Assisted Conciliation.”

Appeal by Helensburgh Coal Pty Ltd v Bartley & Ors (2022) FWCFB 166 delivered 1 September 2022 per Catanzariti VP, Bissett C and Wilson C