[2014] FWCFB 4125

[2014] FWCFB 4125

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Bruce Teterin, Ronald Leggett, Danny Garaty, Steven O'Donnell, Phillip Gardner, Joseph Fogg, Michael Bower, Anthony Anderson, Jason James, Michael Roe, Paul Watkins, Peter Lye
v
Resource Pacific Pty Limited t/a Ravensworth Underground Mine
(C2014/579)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT SAMS
COMMISSIONER DEEGAN

SYDNEY, 2 JULY 2014

Appeal against decision [2014] FWC 1578 and order PR548837 of Deputy President Lawrence at Sydney on 20 March 2014 in matter numbers U2013/2313, U2013/2314, U2013/2315, U2013/2320, U2013/2328, U2013/2329, U2013/2330, U2013/2331, U2013/2334, U2013/2335, U2013/2377, U2013/2394.

Introduction and background

[1] The twelve individual appellants in this matter (appellants) seek permission to appeal and appeal a decision of Deputy President Lawrence issued on 20 March 2014 (Decision) 1 in which applications filed by each of them for unfair dismissal remedies pursuant to s.394(1) of the Fair Work Act 2009 (the Act) were dismissed.

[2] The background to this matter may shortly be stated. The appellants were formerly employed by the respondent at its Ravensworth Underground Mine (the Mine) in the Hunter Valley in New South Wales. The respondent is part of the Glencore Xstrata Group of Companies. During 2013, the Mine underwent a restructure which required a number of positions to be made redundant. On 24 June 2013 each of the appellants received a letter from the Mine’s Operations Manager, Mr Kirsten, informing them that they would become redundant effective from 1 July 2013. The letter went on to say:

“The Company has reviewed other employment opportunities within the Group, and will continue to do so, to ascertain whether there are appropriate positions available that suit your skills, competencies and experience. We have explored some positions we consider could be appropriate. However, please refer to Glencore Xstrata website for a list of current vacancies in case there are particular roles for which you want to be considered. Please let me know as soon as possible if you would have an interest in any of these roles.

We will continue to consult with you and your representatives about this decision and its effects. Subject to these discussions and the availability of any suitable alternative roles, your position will become redundant and employment with the Company will end.

Should your employment be terminated due to redundancy, you will receive redundancy pay. Please find enclosed a summary of your estimated final pay, including accrued leave entitlements and redundancy pay calculated in accordance with The Ravensworth Underground Enterprise Agreement 2010.”

[3] The process described in the 24 June 2013 letter did not result in alternative employment opportunities being obtained for any of the appellants. On 2 July 2013 the appellants each received a letter which stated the following:

“I refer to my letter of 24 June 2013 and our recent discussions on 28 June 2013.

As discussed, your position has been identified as no longer required by the Company. The reasons for this have been discussed with you and your representatives. We have considered other employment opportunities within the Group, and referred you to a list of possible vacancies. There are currently no appropriate positions available that suit your skills, competencies and experience.

I therefore confirm that your employment will end due to redundancy.

You will not be required to work out your notice period and will be paid in lieu of notice. Accordingly, your employment will end on 2 July 2013.”

[4] The appellants’ unfair dismissal remedy applications were lodged at varying dates in mid-July 2013. The respondent contended at first instance that the dismissals could not, under the Act, be found to be unfair because the condition in s.385(d) could not be satisfied in that the dismissals were genuine redundancies under s.389 of the Act. Sections 385 and 389 provide as follows:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.

[5] In the Decision the Deputy President considered the question of whether the dismissals were genuine redundancies as a preliminary question to be determined prior to any consideration of the merits of the appellants’ applications, as required by s.396 of the Act. The Deputy President accepted the respondent’s contention that the dismissals were genuine redundancies within s.389, and accordingly dismissed the appellants’ unfair dismissal remedy applications.

The Decision

[6] In his decision, after dealing with a number of preliminary matters, the Deputy President identified the critical question to be determined as being whether it would have been reasonable for the appellants to have been redeployed within the respondent’s enterprise or within the enterprise of an associated entity for the purposes of s.389(2). 2

[7] The evidence adduced by the appellants and the respondent was recited at length in the Decision. 3 This included evidence given by Mr Kirsten as to whether the appellants could have been redeployed to perform work which was at that time performed either by contractors or other employees of the respondent on overtime. That evidence was summarised in the Decision as follows:

“[48] Mr Kirsten outlined the process of consultation between the union and employees commencing 9 May 2013. The question of replacing contractors was raised by the CFMEU but rejected by the Respondent on the grounds of skills and flexibility. A meeting of employees at the Singleton Diggers Club took place on the same day. A further meeting with CFMEU officials took place on 13 May and again on 20 May. Various consultations took place through June. A range of options were discussed.

[49] Mr Kirsten asserted that the CFMEU focus was on redeployment opportunities at other Group sites. At paragraph 32 of Exhibit M3 he says:

“Accordingly, and is appropriate in any event, the Company concentrated considerable efforts on trying to increase the number of redeployment opportunities available, ensuring all employees at risk of redundancy were encouraged to indicate if they had any interest in the vacancies and assisting these employees to obtain positions.” (Exhibit M3)

Group HR collated positions at other Group sites and distributed them to RUM employees. This description of the process was not challenged in cross-examination.

[50] Mr Kirsten testified that contractor hours at RUM decreased by more than 70% between September 2012 and September 2013. Redeployment of redundant employees to contractor positions was also impossible because regular contractor positions had been eliminated in 2012. However, he had taken steps to reduce the contractor role in respect of drilling, stores, seals work, diesel servicing and concreting. Finally, he asserted that replacing overtime was not raised by the CFMEU or employees during the consultation period. In any event, the Respondent had taken steps to put a cap on it.

[51] In his further statement of 28 November, (Exhibit M4) Mr Kirsten refuted the CFMEU’s witnesses’ arguments about specific contractors on the grounds of specific skills and equipment and critical time requirements for particular projects. The longwall mine [sic, should be “longwall move”], relied on by the applicants, required specialist experience and equipment and, in any event, commenced more than four weeks after the applicants were dismissed.”

[8] The Decision then referred to two Full Bench authorities concerning s.389(2), namely Ulan Coal Mines Limited v Honeysett 4 and Technical and Further Education Commission t/a TAFE NSW v Pykett5, as well as a number of first instance single member decisions concerning that provision. Then, having found that it was not in issue and he was satisfied that, for the purposes of s.389(1), the respondent no longer required the appellants’ jobs to be performed by anyone and had complied with the consultation requirements in the applicable enterprise agreement6, the Deputy President turned to the question of whether it was reasonable for the appellants to be redeployed for the purposes of s.389(2). He framed the task of determining this question in the following way:

“[87] The Applicants must establish this for their dismissals to be decided to be not genuine redundancies. If this is so, the “defence” of “genuine redundancy” available to the Respondent under s.385 will not apply, and a decision will need to be made as to whether the dismissals were otherwise harsh, unjust or unreasonable. An examination of both the employer’s actions and individual employees’ actions is required. A decision will turn on the evidence relating to each case.

[88] The following appear to be the possible options for redeployment of the Applicants raised by the CFMEU:

(a) as direct employees of the Respondent

(b) as direct employees of an associated entity of the Respondent

(d) as an employee of a contractor engaged within the enterprise of the Respondent

(e) as an employee of a contractor engaged within the West Wallsend Colliery, an associated entity of the Respondent.

I will deal with each in turn.”

[9] The Decision then dealt in turn with the five possible options for redeployment identified above. In relation to redeployment as a direct employee of the respondent, the Deputy President stated that it was “accepted” by the appellants that this was not an option for them, and found that this would not have been reasonable because of the unavailability of alternative positions. 7 The Deputy President reached a similar conclusion concerning direct employment with associated entities of the respondent, finding that any available positions had been given in a merit selection process to other employees of the respondent who had also been at risk of being made redundant.8

[10] In relation to the third option for redeployment to direct employment resulting from a reduction in overtime, the Deputy President said:

“[96] The level of overtime at RUM was a contested issue between the parties. The CFMEU submitted that RUM employees were undertaking substantial amounts of overtime before and after the dismissals. They argue this could have been reduced to assist in re-deployment.

[97] The Respondent says that the issue of overtime was not raised as a priority by the CFMEU during the consultation process. In any event, overtime is variable and somewhat unpredictable. Moreover, Mr Kirsten gave evidence that he had taken steps to cap it (Exhibit M3). Exhibit K1, which contained total overtime hours worked in the few months around the dismissals, does not really show what happened to overtime levels and why.

[98] I accept that the issue of overtime is legitimate for the CFMEU to raise in the context of its demand for redeployment. The difficulty is the lack of evidence about the reason for overtime and how it could be translated into work for the Applicants, as Commissioner Raffaelli said in his second Ulan Coal decision.

[99] The Full Bench in Pykett makes it clear that it is not necessary to identify a particular job or position to which the dismissed employee could have been redeployed. However, the Commission must find on the balance of probabilities that there was “a job or a position or other work” within the employer’s enterprise (or an associated entity) to which it would have been reasonable in all the circumstances to redeploy the Applicants. There must be evidence for such a finding. However, the evidence is likely to be within the knowledge of the employer, not the Applicants.

[100] It seems there is a difficulty for the Applicants in advancing their case for redeployment, which I will discuss further in the next section. In any event, in respect of overtime, I do not think there is sufficient evidence to support the CFMEU’s argument.

[101] I find that the redeployment of the Applicants in this regard would not have been reasonable.”

[11] In relation to the fourth option of employment in lieu of contractors, the Deputy President firstly rejected a submission made by the respondent that it could never be reasonable for the purposes of s.389(2) to redeploy an employee to perform work currently performed by the employee of a contractor, because such work was not “available” to be performed. The Deputy President said:

“[102] In my view, the decision in Pykett means that “work within the employer’s enterprise” would include work carried out by employees of contractors engaged by the Respondent and working within RUM [the Mine].

[103] The cases referred to earlier in paragraphs [74] to [79] show that members of the Commission have been prepared to consider applications for redeployment to work on a wider basis than simply direct employees of the Respondent, specifically casuals and labour hire employees.

…

[109] The Respondent submits that the engagement of a contractor to provide labour within an employer’s enterprise means that work is not available for deployment. At page five of the supplementary submission of 25 February, Mr Murdoch submits:

“‘Available’ in the context of s.389(2) of the Act, should be applied in the sense of ‘available’ to be performed by employees, but not at the expense of a contractor’s employees.”

[110] I do not think that this is correct if it means that consideration of the work being done by contractors is excluded from consideration as to whether a job, position or other work is ‘available’ as required by Pykett.”

[12] The Deputy President then dealt with the evidence, and made the following findings:

“[107] I am satisfied that each of the Applicants would have the skills and experience to do the work done by employees of contractors. I also accept that the CFMEU was disappointed its expectations for a decrease in contractors were not met. Whether they were actually not met is not clear however. Exhibits K1 and M10 give a mixed picture of variations in total contractor hours. It seems clear that there was a significant reduction in the 12 months prior to the dismissals.

[108] Mr Kirsten gave evidence that regular contractor positions, used as supplementary labour on work usually done by direct employees, had been eliminated in 2012. He also gave evidence about the specialist skills, experience and equipment of contractors. In addition, with respect to the longwall move, work commenced more than four weeks after the dismissals and lasted for 28 days. The Respondent’s submission was that this one-off work was the only reason for contractor hours to vary in July and August. Otherwise the trend was consistently down.”

[13] The following conclusions were then stated in the Decision:

“[111] The real difficulty is an evidentiary and practical one. The Applicants were unable to provide enough evidence that work could be made available through the displacement of contractors or put forward a practical proposal as to how this could be done.

[112] This is particularly because the Commission has said, in the cases quoted in this decision, and I accept that:

• positions cannot be created where there are none

• displacing existing occupants of positions is not appropriate

• a requirement that there be a complete change in the employer’s employment strategy is not appropriate

[113] The difficulty can be seen by the difference in approach by the CFMEU witnesses as to how the contactors should be displaced. Philip Gardner said that contractors should have been displaced and replaced by the employees made redundant (Transcript PN781 - PN789). Mr Drayton said that work could have been made available as a result of the allegedly greater turnover of employees of contractors (Transcript PN1009 - PN1012).

[114] The CFMEU did not know:

• the precise details of work being done by contractors at RUM when the restructure was announced:

• the details of the employees of contractors and their employment arrangements

• the details of contractual arrangements between the contractors and the Respondent including their expiry dates and whether and how the contracts could be terminated

• the Respondent’s projection of its workforce requirements

These could have been demanded of the Respondent at the time, or the requirement for such information to be provided been part of the consultation process contained in the Agreement. In any event, these would be matters for negotiation between the Respondent and the CFMEU.

[115] In summary, in respect of contractors within the Respondent’s enterprise, I find that there is insufficient evidence to allow me to decide that there was a job, position or other work available for each of the Applicants at the date of dismissal to which it would have been reasonable to redeploy the dismissed employees.”

[14] In respect of the fifth option of redeployment to work performed by employees of a labour hire contractor at West Wallsend Colliery, the Deputy President reached a similar conclusion about the “evidentiary and practical difficulties” concerning the appellants’ case in this respect, stating:

“[119] Accordingly, with respect to contractors within the enterprise of an associated entity of the Respondent, I find that there is insufficient evidence to allow me to decide that there was a job, position or other work available for each of the Applicants at the date of dismissal to which it would have been reasonable to redeploy the dismissed employees.”

[15] The Deputy President then dismissed the applications before him on the basis of the findings he had made concerning the application of s.389. 9

Submissions

[16] The appellants, who were jointly represented at the hearing of their appeal by their union, the Construction, Forestry, Mining and Energy Union (CFMEU), advanced five propositions in their written and oral submissions. The first, upon which most emphasis was laid, was that the Deputy President erred by approaching the matter as if the appellants bore the evidentiary burden of demonstrating that it would have been reasonable for them to be redeployed within the respondent’s enterprise or that of an associated entity. The appellants submitted that s.389 was properly to be characterised as a jurisdictional bar to further proceedings, and consistent with the Full Bench decisions in Roy Morgan Research Ltd v Baker 10 and Mackay Taxi Holdings v Wilson11, this should have meant that the evidentiary burden lay with the respondent. It was unreasonable, the appellants submitted, to treat them as bearing the evidentiary burden, since the facts concerning the possibility of redeployment were peculiarly within the knowledge of the respondent. This error, it was said, particularly affected the Deputy President’s conclusions concerning the possibility of redeployment to work performed by contractors, and to a lesser extent redeployment to work performed as overtime. The appellants pointed in particular to these conclusions being based on “insufficient evidence” as demonstrating that the Deputy President treated the appellants as having the evidentiary onus with respect to these matters.

[17] The appellants’ second proposition was that the Deputy President erred by not following Pykett in treating the exercise of arbitral functions under s.389(2) as involving a two-step process in which the first step was to identify whether there were jobs, positions or other work in the relevant enterprise(s) for which employees were suitably skilled and experienced to perform and the second step was to make a discretionary judgment based on all the circumstances as to whether redeployment to such jobs, positions or work was reasonable. These distinct “could” and “should” steps were, it was submitted, conflated rather than separately considered by the Deputy President in relation to the option of redeployment to perform the work of contractors.

[18] The third proposition was that the Deputy President erred by finding that there was not sufficient evidence to find that redeployment to work performed by contractors or employees on overtime was reasonable. The appellants pointed to evidence which they gave concerning the extent of work performed by contractors and employees on overtime, and work that was available to be performed on a longwall relocation. The fourth proposition was that the principles stated in paragraph [112] of the Decision (earlier set out) were not binding principles applicable to every case under s.389(2), and the principle in particular that “displacing existing occupants of positions is not appropriate” led the Deputy President to peremptorily dismiss any serious consideration of redeployment of the appellants into the work performed by contractors. The final submission was that the Deputy President had misunderstood the appellants’ case below, in that they had never submitted that they could have been redeployed as employees of contractors, but rather that they could have been redeployed as direct employees of the respondent to perform work currently performed by contractors. That this was the case, the appellants submitted, was demonstrated by the fact that the Deputy President had at paragraph [81] recorded a concession that the appellants had never made, namely that redeployment to direct employment with the respondent was not an option.

[19] The appellants submitted that permission to appeal should be granted because the appeal raised questions of general legal significance concerning the operation of s.389. They submitted that the Decision should be quashed and that the Full Bench should make its own determination concerning the application of s.389 and then remit the appellants’ applications to a single member to be heard on their merits.

[20] The respondent submitted that the evidence had clearly demonstrated that the respondent had made extensive efforts to identify alternative redeployment opportunities for the appellants, but that no such opportunities existed. Because it was well accepted that an employer’s decision to contract out or outsource a function was a decision that fell within s.389(1)(a) - that is, that the employer no longer required the job to be performed by anyone - the proposition that s.389(2) should be read as requiring an employer to displace contractors’ labour was necessarily inconsistent with the legal context and intention of the provision. It was likewise the case, the respondent submitted, that s.389(2) did not require an employer to create a position where there was none, redeploy an employee whose position has been made redundant to any vacant position, or materially change its employment strategy or choice of labour mix to the detriment of employees of contractors or the employer’s operational and commercial needs and contractual obligations. As a general proposition, it was further submitted, s.389(2) should not be “strained” in a manner that abrogated the right of an employer to manage and regulate its own business, so that it was appropriate for the Deputy President not to override the respondent’s fair and operationally necessary management decisions as to its employment strategy.

[21] The appellants’ focus on the issue of evidentiary onus was, the respondent submitted artificial; the Deputy President was required to determine the matter on the evidence before him. The effect of s.385 was to require an applicant for an unfair dismissal remedy to establish, among other things, that the dismissal was not unfair; s.389(2) similarly required the applicant to adduce evidence to establish that it would have been reasonable in all the circumstances to redeploy the applicant. In those circumstances, the findings made by the Deputy President to the effect that he could not be satisfied that that it would have been reasonable to redeploy the appellants were consistent with the legislative scheme.

[22] As to the other aspects of the appeal, the respondent submitted:

• the “two-step process” which the appellants sought to derive from Pykett was an artificial construct, and reasonableness was relevant at all stages of the analysis;

• contrary to the appellants’ submissions, the evidence adduced by the respondent firmly established that redeployment was not reasonable;

• the Deputy President was entitled to take guidance from decisions, including single-member decisions, concerning s.389(2), and his acceptance of the propositions stated in paragraph [112] of the Decision did not involve elevation of those decisions to the level of binding authority in a manner that circumscribed his discretion; and

• the Deputy President did not, on a proper reading of the Decision, misunderstand the appellants’ submissions concerning redeployment to work performed by contractors, but rather rejected that submission on the basis of the evidence before him.

Consideration

[23] As earlier stated, the primary issue raised by the appellants concerned the question of who bore the onus of demonstrating the reasonableness of redeploying the appellants for the purposes of s.389(2). The issue of whether legal concepts of onus have a role to play in a statutory tribunal such as this Commission is a difficult one. We note in this respect the following comments made by a Full Bench of the Australian Industrial Relations Commission (AIRC) in Coal and Allied Operations Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union 12:

“It is doubtful how far the notion of onus of proof is relevant at all to Commission proceedings. There is a respectable basis for the view that, where there is a statutory requirement for the Commission to be "satisfied" about exercising a discretion, the notion of onus of proof imports legal doctrines that should have no part in the Commission's procedural or decisional process. This is especially so where a discretion, as in the case of section 127, is exercisable on the Commission's own motion. In short, the Commission is either satisfied that it should exercise the discretion, or it is not. It matters little how the Commission arrives at that state of mind. Perhaps no party can be said to bear an onus in a quasi-judicial proceeding that is freed of legal technicality and is directed to the determination of a statutory discretion. Even if that view be accepted, there are ingredients of the principles associated with the notion of onus of proof that have a useful role in any adversarial proceeding. In that context, a notion of onus stems from the fact that an applicant is the party who usually has the carriage of the application and who bears the risk of failure. The applicant thus may be said to bear an onus of satisfying the Commission that an order should be made. Where a matter commences on the Commission's own motion, no party bears any direct onus but the Commission must be satisfied that a proper basis for exercise of power in the matter is established.”

[24] Similarly in Re Chamber of South Australian Employers Inc (No 2) 13 a Full Bench of the AIRC said:

“... legal notions of burden of proof have limited application in a jurisdiction administered under procedural requirements not bound by any rules of evidence. In a case of this kind the Commission must exercise its discretion by reference to findings based upon available evidence. The notion of onus of proof comes into play predominantly in the sense that if the Commission is not able to make a necessary finding, the party invoking the jurisdiction, being a party to whose case that finding is necessary, should fail in having the jurisdiction applied in the manner sought.” 14

[25] In considering the appellants’ submissions concerning onus, it is important to distinguish between a legal onus and an evidentiary onus. A legal onus, or burden of persuasion, “is the obligation of a party to meet the requirement of a rule of law that a fact in issue be proved” to the requisite standard of proof, with such a party bearing the risk of non-persuasion as to the fact in issue. 15 The limited role of the legal onus in court proceedings is explained in Cross on Evidence in the following way:

“Burdens of persuasion affect the outcomes only of cases in which the trier of fact thinks the plaintiff's and the defendant's positions equi probable. Burdens of persuasion are, in other words, tie-breakers. If the trier of fact, having heard all the evidence, comes to a definite conclusion, there is no occasion to invoke a burden of persuasion.” 16

[26] The evidentiary onus was described by the High Court in Sidhu v Van Dyke 17 “in its strict legal connotation” as being “the burden of adducing or pointing to sufficient evidence to raise an issue for determination by the court”.18 It has also been referred to as the burden of adducing evidence.19

[27] In most of the decisions relied upon by the appellants to support the proposition that in the case of jurisdictional objections based on s.389 it will be the respondent who bears the onus, it is apparent that an evidentiary onus was being referred to. For example, in Roy Morgan Research Ltd v Baker 20 the Full Bench quoted21 from an earlier Full Bench decision concerning the equivalent provision to s.389 in the Workplace Relations Act 1996, Village Cinemas Australia Pty Ltd v Carter22, which expressly referred to the “evidentiary onus”23, and went on to say:

“[27] As was noted by Deputy President Gooley, the Appellant is entitled to restructure its HR team. However, if it wishes to contest an application for relief in respect of the termination of an employee made redundant as a consequence on the basis that the redundancy was due to the changed operational requirements of its enterprise (ss.385(d) and 389(1) of the Act), it must produce evidence to the Commission to support such a proposition, including evidence of the changed operational requirements.”

[28] In the most recent decision referred to, namely TAFE NSW v Pykett 24, the Full Bench relevantly stated:

“[36] We have earlier set out the submissions of the appellant and the respondent as to the proper construction of s.389(2) (see paragraphs [15] to [18] above). We accept the respondent’s submissions. For the purposes of s.389(2) the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must also be an appropriate evidentiary basis for such a finding. Such an interpretation is consistent with the ordinary and natural meaning of the words in the subsection; the Explanatory Memorandum and Full Bench authority. We acknowledge that the facts relevant to such a finding will usually be peculiarly within the knowledge of the employer respondent, not the dismissed employee. If an employer wishes to rely on the ‘genuine redundancy’ exclusion then it would ordinarily be expected to adduce evidence as to the following matters:

(i) that the employer no longer required the dismissed employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise;

(ii) whether there was any obligation in an applicable modern award or enterprise agreement to consult about the redundancy and whether the employer complied with that obligation; and

(iii) whether there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employer.

[37] The evidence in relation to (iii) would usually include canvassing the steps taken by the employer to identify other work which could be performed by the dismissed employee.”

[29] It is evident that the above passages are referring to an evidentiary onus or something analogous thereto because they concern the employer’s obligation to adduce evidence.

[30] There can be no doubt that, to the extent the respondent in the proceedings at first instance bore an evidentiary onus with respect to s.389(2), it discharged that onus. It called extensive evidence, principally from Mr Kirsten, concerning the steps the respondent had taken to explore redeployment opportunities and why, ultimately, the appellants could not be redeployed. Mr Kirsten’s evidence in particular responded to evidence adduced from the appellants concerning work being performed by contractors or on overtime which the appellants were capable of performing. In summary, Mr Kirsten gave evidence that:

• The hours performed by contractor personnel had decreased by over 70% between September 2012 and September 2013.

• In consultations concerning the 2013 restructure with the CFMEU and the workforce, the possibility of creating additional positions by the further reduction in contractor personnel was carefully considered, but there was no commercial option that could increase the number of employees to be retained by further reducing contractor hours.

• Contract personnel working in crew positions on a regular and ongoing basis had already been largely eliminated. Two contractor personnel remained who were covering for injured fitters, but the fitters were projected to return to work in the next month at which time the contractor personnel would no longer be required.

• The contractors who remained were generally used to supply necessary equipment as well as labour in a “package” arrangement, to flexibly provide short term additional labour to deal with time critical functions or sporadic work (noting that the Mine did not have casual employees), to provide specialist personnel with skills, experience and competencies not available in the Mine’s workforce, or to perform work where future operational needs could not be predicted with certainty.

• Contractors were essential in conducting longwall moves, since they required specialised equipment, involved time specific and labour intensive tasks, and were time critical overall.

• He had identified specific areas where contractor personnel were still being used, in drilling work, stores work, seals work, diesel servicing work, and in providing additional labour for sporadic tasks requiring short bursts of sporadic labour such as concreting. In none of those areas, for reasons which Mr Kirsten explained, was it practicable to replace the contractors with directly employed personnel.

• A small number of additional positions had been created by replacing contractor personnel.

• Overtime payments to employees often reflected entitlements under the enterprise agreement (for example, the payment of the remainder of a shift at overtime if an employee worked through a crib break) rather than additional work.

• Work performed after the end of a shift was usually for the purpose of performing work which could not be finished during the shift. Additional overtime shifts might be worked to cover absences of other employees or to undertake training. Weekend shifts were used to perform ad hoc maintenance or other work which could not be performed during the week without disrupting production. Other overtime was performed to cover time-specific work and/or labour intensive tasks.

• Overtime had not been raised by the CFMEU or employees during the consultation concerning the 2013 restructure as a way to mitigate job losses, and was therefore not considered. It would not have been viable for overtime hours to be performed by retrenched employees because of the time-specific nature of the overtime worked, the multiple-manning requirements of many tasks performed as overtime, the different skills, experience and tickets required for different tasks performed on overtime, and the need to use overtime to expand the skills base of the workforce. Additionally, the absence of casuals at the Mine meant that overtime was the principal means of obtaining the necessary flexibility.

[31] The complaint of the appellants concerning onus turned primarily on the conclusions stated at paragraphs [111], [115] and [119] of the Decision to the effect that the appellants had not put forward sufficient evidence to allow a finding to be made that it would have been reasonable to redeploy the appellants to work currently performed by contractors. Those paragraphs cannot be read as relieving the respondent of any evidentiary onus which it bore, since as explained it clearly discharged any such onus. Although not put precisely in this way, the substance of the appellants’ submission about these paragraphs appears to have been that these conclusions reflected a reversal of the legal onus or burden of persuasion - that is, that the Deputy President treated the appellants as bearing the risk of non-persuasion with respect to the s.389(2) issue.

[32] We do not consider that this submission justifies the grant of permission to appeal in the public interest or otherwise for the following reasons:

(1) The authorities referred to by the appellants do not stand for the proposition that the respondent to an unfair dismissal remedy application bears the legal onus with respect to the matters in s.389(2) of the Act. We note that the appellants referred us to the Federal Court Full Court decision in Mann v Ross 25 which arguably stands for the proposition that, under the Workplace Relations Act 1996 as it was in 1997, the employer bore the burden of persuasion with respect to exclusionary provisions in the unfair dismissal scheme under that Act. However, the unfair dismissal scheme in the Act is expressed and structured in a distinctly different way such that Mann v Ross may not necessarily be applicable.

(2) The manner in which the Deputy President expressed his conclusions may be justified by reference to s.385(d), which requires that for a person to have been unfairly dismissed, the Commission must be satisfied that the dismissal was not a case of genuine redundancy. It must follow that the applicant in an unfair dismissal case bears the risk of failure if the state of satisfaction required by s.385(d) cannot be reached. If the Deputy President considered the evidence insufficient to allow him to determine whether redeployment was reasonable under s.389(2), then (there being no issue with respect to the s.389(1) matters) he could not be satisfied that the dismissals were not genuine redundancies, meaning that the applications before him had to be dismissed.

(3) Our review of the evidence - in particular, the evidence of Mr Kirsten referred to above, and the cross-examination of Mr Kirsten - leads us to conclude that the respondent did in fact establish that redeployment of the appellants to work performed on overtime or by contractors would not have been operationally practicable and therefore would not have been reasonable. If we were to grant permission to appeal and uphold the appeal, we do not consider that any different result would follow from us re-hearing the matter. The grant of permission to appeal would therefore be lacking in utility, whatever the correct position concerning legal onus may be.

[33] We are not satisfied that the appellants have in any other respect demonstrated any appellable error that affected the outcome of the matter such as to justify the grant of permission to appeal. Assuming for present purposes that Pykett is authority for the proposition that the application of s.389(2) involves a “distinct two-step process” as characterised in the appellants’ submissions, it is not clear to us that the Deputy President departed from that process. We consider that the gravamen of his Decision was that he was unable to identify any job, position or work to which the appellants could, in practical terms, be redeployed. That being the case, the conclusion that redeployment would have been reasonable for the purposes of s.389(2) was not available.

[34] We do not consider that the Deputy President erred in finding that there was not sufficient evidence to conclude that redeployment to work performed by contractors or employees on overtime was reasonable. Although the appellants adduced evidence that there was work being performed by contractors - work which, the Deputy President accepted, the appellants had the skills and experience to perform - the evidence of Mr Kirsten, which we have earlier summarised, demonstrated that redeployment to perform this work was not practicable and therefore not reasonable.

[35] We accept the appellants’ submission that the propositions stated in paragraph [112] of the Decision cannot be treated as binding principles applicable to every case under s.389(2). We did not understand the respondent to have submitted otherwise. Section 389(2) requires the reasonableness of redeployment to be assessed “in all the circumstances”, meaning that it is not possible to establish binding rules concerning the application of s.389(2) in all cases irrespective of the circumstances of each particular case. However, there is nothing in the Decision to suggest that the Deputy President’s “acceptance” of these propositions affected the outcome of the matter before him. He did not accept that work performed by contractors was excluded from consideration under s.389(2), and reached his determination on the basis of the evidence before him about that matter.

[36] We do not accept the appellants’ submission that the Deputy President misunderstood their case. It is apparent, on a fair reading of the Decision as a whole - in particular paragraphs [102]-[119] - that the Deputy President understood the appellants’ case to be that it was reasonable for them to be redeployed to perform the work of contractors as direct employees of the respondent, not as employees of the contractors. Paragraph [111], for example, refers to the issue of whether “work could be made available through the displacement of contractors” (underlining added) - a proposition inconsistent with redeployed persons being employed by those contractors. The reference in paragraph [89] of the Decision to it being accepted by the CFMEU that redeployment to direct employment in the Mine was not an option is to be read, we consider, as meaning redeployment to an existing vacant position in the Mine.

Order

[37] Permission to appeal is refused.