Industrial Relations Commission of New South Wales CITATION : Construction, Forestry, Mining and Energy Union (NSW Branch) on behalf of G Wood and others v Lake Maintenance [2001] NSWIRComm 206 PARTIES : Construction Forestry Mining and Energy Union (NSW Branch) Lake Maintenance FILE NUMBER: IRC 2071, IRC 2072, IRC 2073, IRC 2074, IRC 2492 of 2001 CORAM: Harrison DP CATCHWORDS : Application for relief from unfair dismissal - retrenchment due to downtuwn in work disputed - denial of procedural and substantive fairness. Held - termination in response to wage claim - failure to consult - compensation ordered LEGISLATION CITED : Industrial Relations Act 1996 Quality Bakers and Collins v Shell Refining (Aust) Pty Ltd [1999] NSWIRComm 122 (Bishop C 30/3/99) CASES CITED : Wildey v Asset Developments (IRC94/1238 Shiels CC 24/7/94, unreported) Federated Clerks Union of Australia and anor v Victorian Employers Federation and ors [1985] 154 CLR 472 HEARING DATES: 06/18/2001; 07/09/2001; 07/10/2001 DATE OF JUDGMENT: 09/06/2001 APPLICANT Mr S Smith Construction, Forestry, Mining & Energy Union (NSW Branch) LEGAL REPRESENTATIVES: RESPONDENT Mr A Willems Newcastle Master Builders' Association JUDGMENT: 21 INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Thursday, 6 September 2001 Matter No IRC 2071 of 2001 cONSTRUCTION FORESTRY MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH) ON BEHALF OF GRAEME WOOD AND LAKE MAINTENANCE Matter No IRC 2072 of 2001 cONSTRUCTION FORESTRY MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH) ON BEHALF OF mICHAEL oRGAN AND LAKE MAINTENANCE Matter No IRC 2073 of 2001 cONSTRUCTION FORESTRY MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH) ON BEHALF OF DAVID JOHNS AND LAKE MAINTENANCE Matter No IRC 2074 of 2001 cONSTRUCTION FORESTRY MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH) ON BEHALF OF robert hamilton AND LAKE MAINTENANCE Matter No IRC 2492 of 2001 cONSTRUCTION FORESTRY MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH) ON BEHALF OF TONY PEARSON AND LAKE MAINTENANCE Applications re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2001] NSWIRComm 206 1 The applications in matters no IRC 2071, 2072, 2073 and 2074 of 2001 were filed on 20 March 2001, and in IRC 2492 of 2001 on 5 April 2001. The matters were subject to proceedings for the purpose of conciliation and directions on 12 April 2001, at which time they were joined and continued to completion in that manner. 2 Proceedings of 12 April 2001 established that the matters could not be resolved by conciliation and directions issued to bring the matters to hearing on 18 June 2001 on the estimate of one day required for proceedings. In the event, this estimate proved to be ambitious, the matter requiring two further days of arbitration, 9 and 10 July 2001. 3 Mr S Smith of the Construction, Forestry, Mining and Energy Union (NSW Branch) (CFMEU) appeared with and on behalf of the applicants. Mr A Willems of the Newcastle Master Builders' Association (MBA) appeared for Lake Maintenance ('the company'), the respondent employer. 4 Mr Smith brought evidence from the applicants, Mr Graeme Wood; Mr Michael Organ; Mr David Johns; Mr Robert Hamilton; and Mr Tony Pearson; and from Mr R Cochrane, CFMEU Organiser. 5 Mr Willems brought evidence from Mr Graeme Hall, Managing Director of the company; Mr Andrew Poynting, employed by the company as Project Manager; and Mr Mark Foot, employed by the company as Project Controller. THE EVIDENCE 6 The applicants in these matters were employed by the company pursuant to the Building Tradesmen (State) Construction Award (233 IG 1371) ('the award'), 7 Each of the applicants in these matters was dismissed from employment with the company on Wednesday 28 February 2001. Each was employed as a maintenance carpenter and engaged on repair and maintenance work pursuant to a contract held by an entity known as D R Lake Constructions Pty Ltd with the New South Wales Department of Housing ('the Department'). The work undertaken by the applicants was in the area described as Zone 12, the localities bounded by and including Raymond Terrace, Forster/Tuncurry, and Maitland. 8 The relevant length of service disclosed in the applications is set out below: Matter No. Applicant Classification Commenced employment IRC1/2071 Graeme Wood Carpenter 21/8/00 IRC1/2072 Michael Organ Carpenter 14/8/00 IRC1/2073 David Johns Carpenter 22/5/01 IRC1/2074 Robert Hamilton Carpenter 15/5/00 IRC1/2492 Tony Pearson Carpenter 23/3/01 9 All applicants were employed on a full time basis. 10 The evidence of each of the applicants is that on the morning of 28 February 2001 they were scheduled to work on a vacant property in the Raymond Terrace area. The employees were requested by Mark Foot, their project controller/supervisor, to assemble at Boomerang Park, Raymond Terrace. At this time Mr Foot informed them that he had been instructed to terminate their employment with payment in lieu of notice and to inform them that the reason therefore was lack of work. Mr Foot then informed them that the real reason for the termination of their employment was that some employees had made wage claims and involved the CFMEU. 11 The evidence of the applicants is that they were shocked and surprised at the termination of their employment, having acquired the belief that the contract for maintenance work on Department properties was for a period of five years; and that a significant amount of work was available to continue their employment. 12 The evidence of Mr Foot confirms that of the applicants. 13 Mr Foot deposed that he had been called to a meeting with Mr Hall and Mr Poynting on the afternoon of 27 February 2001 wherein he was informed that three employees had made wage claims and that they were to be dismissed. It is Mr Foot's evidence that moments after being instructed to dismiss those three employees Mr Hall instructed him to "sack the lot of them apprentice included". 14 Mr Foot's evidence is that immediately prior he had been asked by Mr Poynting whom he would like to keep in his crew, eventually settling on Messrs Dean Robinson and Tony Pearson. Mr Foot deposed that he confirmed with Mr Pearson that he wished to remain in employment, however he was subsequently informed by Mr Hall that Mr Pearson had also put in a claim and accordingly he was included in those whose employment was to be terminated. 15 Mr Foot described the work undertaken by the applicants as spasmodic, though sufficient to occupy all seven employees. Mr Foot put that the work is associated with the occurrence of vacancies in Department dwellings which increased dramatically the responsive maintenance requirements. Mr Foot deposed that the volume of work throughout 2000 had remained high though by March 2001 had diminished to half the previous workload. 16 The evidence of Mr Foot is that subsequent to the termination of the five applicants in these matters, three employees remain under his supervision in Zone 12, identified as Messrs Robinson, Woodbine and Burns. Mr Woodbine was the apprentice dismissed and subsequently reinstated on discovery by the respondent of statutory protection for apprentices. Mr Robinson continued in employment in Zone 12 and Mr Burns, formerly a project controller employed by the respondent, was reassigned to Zone 12. 17 Mr Foot deposed that contractors were engaged to carry out the work in Forster/Tuncurry and Gloucester localities previously undertaken by his work crew. 18 Mr Foot deposed that his team was increased by the addition of Mr Kevin Mulhern in March 2001 and by 1 May 2001 he had six employees, identified in his diary (ex 3) as "Dean, Josh, Mulley, Daniel, Kevin and Tim". 19 Mr Foot deposed that the subcontractors continue to undertake work in the Forster/Tuncurry and Gloucester localities. 20 The evidence of Mr R Cochrane is provided in affidavit form (ex 16). Mr Cochrane was subject to cross examination. 21 Mr Cochrane's evidence is that he is an Organiser employed by the CFMEU. He deposed that at 3.30pm on 27 February 2001 he attended the respondent's office in Gateshead and handed to the receptionist letters and documentation relating to complaints received from the applicants about their wages. Mr Cochrane deposed that prior to the delivery of documentation he had spoken to the respondent about various issues, including wage complaints. Mr Cochrane's evidence is that he had been in discussion with an officer of the respondent, identified as Mr Chris Taylor, from November 2000 and that he had never met with nor could identify Mr Hall or Mr Poynting. Mr Cochrane deposed that these ongoing discussions with the respondent had in recent times included the Newcastle MBA in respect to a range of wage claims as well as claims made by the five applicants in these matters. 22 Mr Cochrane deposed that he had been in discussion with the applicants in these matters for some two to three weeks prior to delivery of the formal claim on 27 February 2001. 23 Each of the applicants described the relevant exchanges in the meeting of 28 February 2001 with Mr Foot in terms found at pt 12 of the affidavit of Mr Organ (ex 4): 12. On 28 February 2001 my work mates and I attended work. We were told by Mr Foot to meet in the nearby park. There, Mr Foot said words to the effect of; "Sorry fellas but I've got to lay you all off. There's no work ," At this stage we disputed the claim that there was a lack of work. During discussions Mr Foot said words to the effect of: " I've been told to put you off and sack the fucking lot of you. Graeme Hall told me to sack the guys who put in a wages claim and then turned around and just said 'Sack the fucking lot of them !'". 24 In his evidence Mr Hall deposed that the termination of employment was due to a genuine down turn in available work and refuted the allegation that the motive for termination of the applicants' employment was their pursuit of wage claims. 25 Mr Hall deposed that he was Managing Director and Sole Director of the respondent, with total autonomy under the Articles of Association of the company. Mr Hall deposed that he had occupied this position for some two years. 26 Mr Hall's evidence is that the contract held with by D R Lake Constructions with the Department is for a period of two years and requires a satisfactory completion of responsive maintenance within time frames of two hours for immediate work, to a 21 day program on works order. It is Mr Hall's evidence that the shorter time frames are open to re-negotiation with the Departments. 27 Mr Hall deposed that there was an additional multi-trade contract with the Department which provides the ability to program package works and undertake work on vacant properties. Mr Hall deposed that the size and number of work orders was determined by the Department and that this was not consistent over time. 28 Mr Hall put that the nature of the work varied and that communications were often difficult; citing an example wherein a tenant's request for "re-wiring" had resulted in an order for electrical re-wiring of the house, though on arrival the works team was informed by the occupant that the actual request made to the call centre was for re-wiring of the clothesline. 29 Mr Hall described the circumstances in Zone 12 in late 2000 and early 2001 at p104 and 105 of transcript in the following terms: A: Yes - the zone 12 which relates to the Raymond Terrace area up to Forster/Tuncurry back to Maitland - over the - we commenced our contract there in February of 2001 - 2000, sorry. At that period of time, there was a change in the strategy that the Department of Housing had used whereby they had a number of individual contractors issued X amount of work orders. The contractors that were having their contracts terminated at that point of time purged their orders to the point that they were doing what was economically viable to them knowing full well that they were in a position within four weeks to hand the remaining orders back to their client to have the new contractor fulfil. So very early in that contract we had fairly large volumes of work. The company as a whole also received large amounts of work early on in the contract due to the inability of the other successful multi trade contractor to come on line across the Hunter and we, in effect, completed the work for the whole of the Department of Housing in seven of the nine districts. Zone 12 over the ensuing eight/nine months carried on with a very slight downturn in work but around Christmas time, due to the implementation of an AIP program, which is an Accelerated Improvement Program whereby work is scooped up into bundles and issued to separate contractors you're not allowed to do the same work in the same multi trade district. So, in effect what happened a different contractor was issued with approximately $3½ million worth of work throughout zone 12 essentially in the Raymond Terrace area, the CBD area of Raymond Terrace. This, in effect, took out a lot of the what would have been responsive work by way of programming it, ie: if a door was essentially in a failing condition the AIP would've picked that up. Hence, down the track where that - where it totally would've failed, we would not have got that order. So, around Christmas time that program had ceased and it had been right through the complete - well, most of the area - the 500 dwellings there so the work started to take some fairly dramatic downturns. 30 Mr Hall deposed that allocation of $3.5 million of work to an alternate contractor gave rise to a consideration of staffing levels at a reasonably high management level. Mr Hall deposed that these considerations were made more difficult by what he described as the "inflexibility" of the industrial award, in particular the award requirements that employees not be engaged as casuals for more than five days. 31 In cross examination Mr Hall conceded that he did not have a working knowledge of the award. 32 It is Mr Hall's evidence that as the respondent was in the first term of its contract with the Department he decided to hold existing labour through the Christmas/New Year period in order to meet contract requirements and given experience of fluctuating workloads. 33 Mr Hall deposed that he developed an expectation that there would be a high level of responsive maintenance required over the Christmas/New Year period as tenants and their children would be on holidays and more able to attend to maintenance requests to the Department. 34 Mr Hall deposed that early to mid February 2001 work had dramatically decreased and that informal advice from the Department was that a restriction to minimum essential levels was anticipated. Mr Hall relied upon a schedule or work orders and analyses thereto (exhibits 19, 22, 24 and 25). 35 It is Mr Hall's evidence that the Accelerated Development Program (ADP) is managed by an associated arm of the Department titled "Resitech". The evidence of Mr Hall is that he held work from Resitech. 36 At para 10 of his affidavit of evidence (ex 17) Mr Hall deposed that at 27 February 2001 he held work on 42 properties to be completed in the subsequent five weeks. 37 Mr Smith went to this issue in cross examination (TR p140) in the following terms: Q: In paragraph 10 you say that - and you are quoting some minutes and it is about 10 lines down, it says: "This would therefore leave only 42 properties to complete over the next five weeks."? A: Yes. Q: So from 27 February 2001, you had 42 properties to complete over the next five weeks? A: Yes. Q: And who did that work? A: That work was done in the AIP area for Resitech, it wasn't through the DOH, totally separate contract. That was completed by the people that were contracted or employed to do the work. Q: And who was that? A: Many hundreds of them. Q: Employees of yours? A: Partly, part contractors. We have-plumbing contractors, carpet contractors, painting contractors, we have employees - like we have a tiler and we have contract tilers. It's many, and varied situation. Q: Right, I see. A: That there was what I was getting across to the meeting was that there was a downturn in work, not only in the DOH and the responsive contracts, but also our other major line of work was the AIP programs, that was also declining due to the fact of budgetary restraints. So it was fairly much a out there situation for us. 38 Mr Hall deposed that he was unaware of wage claims at the time the employees were selected for retrenchment, that examination of employment history revealed no issues of job performance or conduct adverse to any employee. Mr Hall deposed that he had never met and accordingly did not know any of the employees as it was not his role to involve himself in the business at that level, relying upon the advice of Mr Foot and Mr Poynting. Mr Hall put that a decision was made that retrenchments should be undertaken in order of seniority, i.e., last on first off. 39 The evidence of Mr Hall confirms that Mr Woodbine was an apprentice and accordingly retained in employment. Mr Robinson was retained in employment as a tradesman; however, it emerged during the course of proceedings that the trade qualifications held by Mr Robinson are that of a chef. 40 Mr Hall further relied upon minutes of management meetings held on 19 February 2001 (ex 18) and 27 February 2001 (ex 23) in which future work orders and the process of retrenchment was discussed. 41 Exhibit 18 records a presentation by Mr Hall to management present of work levels resulting in a decision to immediately reduce the number of employees in zone 12 by five, with the possibility of more. These minutes record the decision to make a selection of employees to be terminated with responsibility allocated to Mr Hall for completion by 27 February 2001. 42 An analysis of work on a monthly basis from October 2000 to January 2001 with estimates for February and March 2001 is provided. This table is set out below: Month Qty Value Average Job Value October 173 $119,164 $ 688 November 148 58,652 396 December 141 44,356 314 January 199 79,945 401 February (estimate) 190 47,690 251 March (estimate) 130 48,100 370 43 Comparisons between November/December 2000 and the February/March estimates do not show a dramatic downturn in work. 44 The minutes of the management meeting of 27 February 2001 (ex 23) have the following relevant entry under the heading "Redundancy": G Hall submitted a list of eight (8) employees currently working in Zone 12 Raymond Terrace. David Johns, Robert Hamilton, Mark Foot, Graeme Wood, Michael Organ, Dean Robinson, Anthony Pearson, and Joshua Woodbine. He noted that to sustain the long trem viability of zone 12, and ultimately the company, five (5) of these employees need to be terminated. 45 A decision to retrench by seniority is also recorded. 46 Mr Hall conceded that there had been no consultation with or advice to employees concerning the prospect of a down turn in work or redundancy arising therefrom. 47 It is Mr Hall's evidence that a refusal by employees to alter their rostered day off (RDO) from Monday, 26 February 2001 to an alternative date had no bearing on the decision to terminate their employment. 48 The evidence of Mr Hall, supported by that of Mr Poynting is that there was some consideration of redundancies taking place in the week ending 23 February 2001 which led to a decision that the employees be asked to work on Monday, 26 February 2001, a regularly rostered day off, to undertake work in hand. 49 In his evidence at page 115 and 116 of transcript Mr Hall made the following deposition: "A: And did Andrew Poynting request that the implementation of the decision to retrench the staff be held over? A: He did. Q: What was the purpose of holding over the implementation? A: We - because our work is fairly itinerant and we have a reporting facility which we - where we have a meeting - a monthly meeting with the Department of Housing. We have KPI's in place, Key Performance Indicators, that he must be achieving, a certain performance of - certain level of performance, prior to us going to the meeting. Obviously these contracts are only ever renewed if you perform, so Andrew's request was that - that my decision be taken back a day, due to the fact that he had received a spike in work over the last couple of days and I agreed. " 50 Mr Hall deposed that he informed Mr Poynting to contact the CFMEU to obtain agreement to swapping the RDO. Mr Hall deposed that employees were not willing to swap their RDO, which he put he and Mr Poynting accepted. 51 The evidence is that Mr Poynting requested Mr Foot to obtain the agreement of employees to work on the weekend and to defer the RDO on 26 February 2001. 52 The evidence of Mr Foot is that when he conveyed the information to Mr Poynting that employees had declined, Mr Poynting sounded angry, saying to him, "There will be repercussions". 53 Mr Hall's evidence is that he then requested Mr Poynting to implement retrenchments forthwith. Mr Hall deposed he was again persuaded by Mr Poynting to delay the termination of employees to allow them to work on Tuesday, 27 February 2001. 54 Mr Hall deposed that he requested Mark Foot and Andrew Poynting to attend a meeting with him on 27 February 2001. Mr Hall deposed that this meeting took place at 4.00 pm. 55 Mr Hall deposed that the purpose of the meeting was to instruct Mark Foot to terminate the employment of the applicants, which Mr Hall put by that time had become somewhat complicated and messy given the issues arising in association with the RDO, causing him to conclude that the termination should be undertaken that afternoon. 56 Mr Hall's evidence is that the documented claims on behalf of the employees were received from Mr Cochrane of the CFMEU at about 3.20pm, which he put was towards the end of the management meeting. Mr Hall deposed that he was extremely disappointed that the claims had been made but that this event did not influence his decision to terminate the employment of the applicants in these proceedings. 57 In cross examination Mr Hall described these events in the following terms (TR pp 149 and 150): SMITH: Q: Now, let's talk a little bit about what happened on the 27th - the second meeting on 27 February between yourself and Mark Foot. Isn't it true that just prior to that you received the wages claims? HALL: A: That's correct. Q And isn't it true that this was the straw that broke the camel's back and you said words to the effect of, sack the effing, lot of them? You said that didn't you? A: No, I didn't. I - it certainly wasn't the straw that broke the camel back - camel's back. The decision had been made to terminate these employees. Whether 1 actually said that or not, I can't remember. Q: You can't remember? A: Look, it is possible. I - you know, that's being - I knew that that would be put to me because it was in Mark's affidavit. At the end of the day, 1 can't actually remember that but I won't - certainly won't deny that I may have said that. Q: Okay, you may have said, "sack the fucking lot of them" in anger? A: I may have. Q: In anger? A: Look, at that stage we were in a position - a situation where I'd made my mind up and my instruction was to do - to carry this out on the Friday. Where I was disappointed in - was that I had succumbed to Andrew's continual requests to keep the guys there so that he could be with his.... Had I actually completed what 1 was going to do on the Friday I don't think we'd be here today but unfortunately that happened. It was a very, very bad timing for it to happen but it was already in process. I couldn't stop the wheels, turning at that stage. Q: All right - - - A: Nor could I. Q: So you were angry? A: No, as I said, I was disappointed because I - I'd read through the claims and the claims of travel and that I'd never heard of in the 18 months before. Why give it to me the day when they obviously knew - they'd obviously leaked out the information that they were going to be terminated. Why give them to me the day before you're going to be terminated. If you've got an issue, come and see me, no, but that didn't happen. Q: Right, okay. So, you're admitting that you might have been angry at that time about the wages claims? A: Disappointed. I wouldn't say angry - disappointed. Q: You used the word "fucking", okay, in that sentence. You said, "sack the fucking lot of them"? A: May have said that. I'm a builder. SUBMISSIONS 58 Mr Smith submitted that the motivation for termination of employment of the applicants in these proceedings was the wage claim delivered on their behalf by Mr Cochrane at approximately 3.20 pm on Tuesday, 27 February 2001, which he put caused Mr Hall to explode into rage and instruct Mr Foot to sack all of the employees. 59 Mr Smith submitted that the evidence of Mr Foot should be accepted on this matter and that the evidence of Mr Hall and Mr Poynting concerning a downturn in available work should not be accepted. 60 Mr Smith submitted that the applicants in these proceedings had been denied procedural fairness as there had been no consultation or discussion with them concerning the prospect of retrenchment owing to a decline in available work. 61 Mr Smith submitted that any downturn in work in March and April 2001 was simply part and parcel of the cyclical nature of work in the construction industry and did not justify the termination of employment of the five applicants. 62 Mr Smith submitted that representation by their union in respect to wages matters does not provide a valid reason for the termination of employment, rendering a conclusion that the termination of employment was harsh, unreasonable and unjust. 63 Mr Smith further submitted that in the event that a downturn in work could be found to support retrenchment, the absence of consultation and the associated denial of procedural fairness rendered the termination harsh, unreasonable and unjust. 64 Mr Smith sought reinstatement, arguing that such a course is practical. 65 Mr Smith put that in the event reinstatement or re-employment were not considered practical compensation is sought. 66 Mr Smith relied upon a decision of Beazley J of the Industrial Relations Court of Australia in Quality Bakers of Australia Ltd v Goulding and anor (1995) 60 IR 327 to support his argument that the applicants had been denied procedural fairness. 67 Mr Smith also took me to a decision of Bishop C in Koenig v Colonial Franchise [1999] NSWIRComm 57 (26 February 1999) which adopts the Quality Bakers decision in this jurisdiction. 68 Mr Willems refuted the allegation that the applicants were dismissed in circumstances which are harsh, unreasonable and unjust pursuant to Ch 2 Part 6 of the Industrial Relations Act 1996 ('the Act'). 69 Mr Willems submitted that the applicants' employment was terminated for genuine commercial reasons arising from the decline in orders placed by the Department with the respondent. 70 Mr Willems relied upon public knowledge that the Department has been openly criticised by the Auditor General for poor administration of its maintenance finances, submitting that the respondent, and subsequently the applicants, have been the victims of the Department's poor administrative practices. 71 Mr Willems submitted that the respondent had minimal experience in dealing with the Department and had been unable to develop a knowledge of seasonal fluctuations and cyclical changes effecting its business activities. 72 Mr Willems relied upon the evidence of Mr Hall that on commencement of work for the Department there was a backlog of work which may have given rise to an impression of a false level of activity. 73 Mr Willems relied upon a decision of Murphy C in Montagner v Construction, Forestry, Mining and Energy Union (New South Wales Branch) [1999] NSWIRComm 589 (20 December 1999) to support his argument and to diminish the aspect of procedural fairness. 74 Mr Willems submitted that the allegation that the terminations arose from the reaction of an emotive and capricious employer for ignoble reasons is not supported by the evidence. At p193 of transcript Mr Willems put that: "The respondent contends that these are spurious claims. Even if the employer expressed some resentment at the unhelpful or confronting behaviour of the employees, it was intended that these comments were to be confined within the ranks of management. Even if the Managing Director, Mr Graeme Hall, said the words: 'Sack the guys who put in a wages claim, and then said: 'Sack the fucking lot of them', those words do not unambiguously indicate that the reason to sack was because of the wages claim. This has been assumed by Mr Mark Foot and told to the employees with unfortunate consequences. Mr Foot was told to tell the workers that the termination was due to lack of work. In hindsight, Mr Foot thinks it would have been better not to have told them that they were sacked because they had complained to the CFMEU. The real reason for termination was lack of work and this was meant to be the only reason given for termination." 75 Mr Willems submitted that I should accept the evidence of Mr Hall that consideration of the termination of employment pre-dated the delivery of claims by Mr Cochrane, and that the refusal of the employees to work overtime on the weekend of 24 and 25 February 2001 or defer their RDO on 26 February 2201 were not part of the consideration to terminate the applicants' employment. 76 Mr Willems put that there had been no employees engaged to replace those terminated, noting that an offer of casual employment had been put to the applicants who had declined to accept it on advice that to do so required them to discontinue their action in these proceedings. Mr Willems refuted this assertion, putting that the offer of casual employment was put on purely genuine grounds and did not carry with it a requirement that these proceedings be discontinued. 77 Mr Willems submitted that the method adopted by the respondent to select the employees for retrenchment was fair, reasonable and proper. 78 Mr Willems relied further on Montagner wherein Murphy C adopted a decision of a Full Bench of this Commission in Outdoor World Pty Ltd trading as Budget Waste Control v Muir (1993) 51 IR 167 to overturn the seniority rule, allowing an employer involved in a genuine redundancy to take action on past behaviour, skills and competencies in the selection of employees for redundancy. Mr Willems noted that seniority was applied in the present matter after all relevant considerations had been made. 79 Mr Willems submitted that there had been no lack of procedural fairness. 80 Mr Willems submitted that the principles enunciated in Quality Bakers and Collins v Shell Refining (Aust) Pty Ltd [1999] NSWIRComm 122 (Bishop C, 30 March 1999) relied upon detailed statutory provisions found in the Australian Workplace Relations Act 1996 which Mr Willems submitted was not found in the Act. 81 Mr Willems relied on the following passage by Bishop C in Quality Bakers and Collins: There is absolutely no doubt in my mind whatsoever, based on the oral and written evidence of the parties, that there was extensive communication and consultation on the need for change, the changes sought and the restructuring process itself. This was clearly, in my view, a genuine restructuring of the organisation with reasonable notice given. I just cannot see any justification at all for Mr Docking's submissions that this was a 'mala-fide' restructuring. A number of cases relied upon by Mr Docking for lack of consultation about redundancy concerned circumstances where employees received no advanced warning whatsoever about forthcoming redundancies (see Cannon v LEP International, Windsor Smith, Beshara as examples of this). I also note that other cases relied on by Mr Docking on those issues also depended on the provisions of the relevant Federal Act (currently the Workplace Relations Act 1996) which contains very detailed statutory obligations in relation to notice, consultation and there being a "valid reason" for termination. Failure to comply with such provisions making any terminations in fact unlawful (see Mitchell-Collins, Mt Gunson Mines P/L case, Kozelj etc.). No such statutory requirements exist under the NSW Industrial Relations Act. Although clearly appropriate consultation and notice are matters this Commission has said should take place and indeed such issues were considered essential in the Redundancy Test Case in 1994 and provisions for such now appear in Redundancy provisions in State Awards." 82 Mr Willems submitted that the terminations were lawful, putting that the Award is a daily hire award and requires only one day's notice from either side to terminate the contract of employment. 83 Mr Willems put that the Building Long Service Leave Payments Corporation, established by New South Wales Statute, provides portable long service leave for employees in the industry, which he contended is a benefit to employees and exists in recognition of the sporadic and short term nature of work in the industry. 84 Mr Willems put that the Award contains redundancy provisions and a "follow the job" loading incorporated into the ordinary hourly rate of pay in recognition of the unique circumstances of the industry. 85 Mr Willems submitted that the respondent is not able to reinstate the applicants to their former positions but would offer such casual work as became available. 86 Mr Willems submitted that the respondent had attempted to place the applicants elsewhere within its organisation prior to termination of employment but that this was either declined or not possible. 87 In reply, Mr Smith took me to a decision of Shiels CC in Wildey v Asset Developments (IRC 1238 of 1994, 27 July 1994 unreported) wherein it is held: "A fair and prudent employer would have to puts its employees on notice of its position, indicating what action it would take if its financial situation did not improve. There is no evidence that the respondent took such action with respect to this matter." 88 Mr Smith further referred me to a judgement of the High Court of Australia in Federated Clerks Union of Australia and anor v Victorian Employers Federation and ors (1985) 154 CLR 472 where at p502 Wilson J says: "Consultation between employers and employees, preceded by the distribution of adequate information is not only sensible but essential if commerce and industry are to meet the challenge of progress in a spirit of harmony and with some regard for human dignity." CONSIDERATION 89 The evidence presented in this matter does not support the dramatic downturn in work contended by Mr Willems. Statistical information referred to in exhibit 23 offers the analysis that there was a peak of work in October 2000 and January 2001, with other months, actual and projected, being relatively stable. 90 Whether the level of work justified continuation of employment of the applicants, or whether there was a basis for reduction of employees in management's mind is essentially a matter for management and it is not the role of this Commission to place itself in the position of management in respect to these matters. 91 However, in proceedings such as these a consideration of the defence advanced by the respondent is necessary. That defence is simply not made out on the evidence. 92 I accept the evidence of Mr Foot, which is supported by that of the applicants in respect to the reasons given for the termination of their employment and not struck down by the evidence of Mr Hall. 93 The evidence of Mr Hall concedes that he received the wage claims prior to his instruction to Mr Foot to effect the termination of employment of the applicants in these matters. Mr Hall concedes that this instruction may have been given with some emotion and colourful language. The explanation put by Mr Hall that he is a builder and uses such language is a curious and fragile refuge of no substance. 94 On any consideration of the matter, whether it be plain retrenchment or peremptory termination of employment, there is in the circumstances of this matter, an absolute denial of procedural and substantive fairness. 95 I find the termination of employment of the applicants in these matters to be harsh, unreasonable and unjust. 96 I determine that neither reinstatement nor retrenchment are practical and assess compensation at 15 weeks pay which, on the information provided in the applications, I assess at $10,000 in respect to each applicant. 97 Orders in respect to each issue herewith. 98 The matters are so concluded. oo0oo INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Thursday, 6 September 2001 Matter No IRC 2071 of 2001 cONSTRUCTION FORESTRY MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH) ON BEHALF OF GRAEME WOOD AND LAKE MAINTENANCE ORDER Pursuant to section 89(5) of the Industrial Relations Act 1996 Lake Maintenance Pty Ltd is order to pay Mr Graeme Wood the sum of $10,000 (ten thousand dollars) within 21 days of the date of this decision. I so order. The Hon. R W Harrison DEPUTY PRESIDENT INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Thursday, 6 September 2001 Matter No IRC 2072 of 2001 cONSTRUCTION FORESTRY MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH) ON BEHALF OF mICHAEL oRGAN AND LAKE MAINTENANCE ORDER Pursuant to section 89(5) of the Industrial Relations Act 1996 Lake Maintenance Pty Ltd is order to pay Mr Michael Organ the sum of $10,000 (ten thousand dollars) within 21 days of the date of this decision. I so order. The Hon. R W Harrison DEPUTY PRESIDENT INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Thursday, 6 September 2001 Matter No IRC 2073 of 2001 cONSTRUCTION FORESTRY MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH) ON BEHALF OF DAVID JOHNS AND LAKE MAINTENANCE ORDER Pursuant to section 89(5) of the Industrial Relations Act 1996 Lake Maintenance Pty Ltd is order to pay Mr David Johns the sum of $10,000 (ten thousand dollars) within 21 days of the date of this decision. I so order. The Hon. R W Harrison DEPUTY PRESIDENT INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Thursday, 6 September 2001 Matter No IRC 2074 of 2001 cONSTRUCTION FORESTRY MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH) ON BEHALF OF robert hamilton AND LAKE MAINTENANCE ORDER Pursuant to section 89(5) of the Industrial Relations Act 1996 Lake Maintenance Pty Ltd is order to pay Mr Robert Hamilton the sum of $10,000 (ten thousand dollars) within 21 days of the date of this decision. I so order. The Hon. R W Harrison DEPUTY PRESIDENT INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Thursday, 6 September 2001 Matter No IRC 2492 of 2001 cONSTRUCTION FORESTRY MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH) ON BEHALF OF TONY PEARSON AND LAKE MAINTENANCE Applications re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 ORDER Pursuant to section 89(5) of the Industrial Relations Act 1996 Lake Maintenance Pty Ltd is order to pay Mr Tony Pearson the sum of $10,000 (ten thousand dollars) within 21 days of the date of this decision. I so order. The Hon. R W Harrison DEPUTY PRESIDENT DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.