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[2003] NSWIRComm 365
respondent. Leave to appeal was granted and the appeal was dismissed. The Full Bench confirmed the orders made on 9 October 2003 ([54]).
The Full Bench held that the award had to be read according to its wording and the context of the Elura Mine operation. It ruled that past conduct could not be used to establish how the parties had understood the clause. Although the Deputy President made that interpretive error, the Full Bench agreed with his ultimate conclusion: the sale and resulting retrenchments were attributable to economic factors, and the award’s four-week notice provision applied. The appeal was dismissed.
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The dispute concerned which notice provision applied when Pasminco proposed selling the Elura Mine and retrenching its employees. The relevant instrument was the Elura Mines Enterprise (Consent) Award 2001. Clause 29 dealt with retrenchment. Its opening words identified several possible causes, including company closure, economic factors, new technology and restructuring. Clause 29(vi) then provided for different notice periods: four weeks where retrenchments became necessary due to economic factors, and three months where redundancies occurred due to technological change or reorganisation ([7]).
No linked legislation citations have been extracted yet.
Pasminco Australia Ltd proposed a conditional sale of the Elura Mine to Consolidated Broken Hill Co Ltd (CBH). The Pasminco Group was operating under deeds of company arrangement after entering voluntary administration in September 2001 ([3], [44]). The sale would result in the termination of Pasminco’s employees at the mine, although the material before the Commission indicated that some might obtain work with the new owner ([9], [13]).
The AWU and other unions disputed the applicable notice period. They argued, in substance, that the sale was part of a reorganisation or restructure, bringing the terminations within the three-month provision. Pasminco relied on the economic condition of the group and argued that the four-week provision applied. Sams DP interpreted clause 29(vi)(a) as applying ([14]).
The AWU appealed. It challenged the treatment of “economic factors”, “reorganisation” and “necessary”, and objected to reliance on evidence about how redundancies had been handled at Elura in 1991. The Full Bench granted leave to appeal, but dismissed the appeal ([2], [15], [18], [54]). Importantly, it identified an error in the Deputy President’s reliance on past application of the clause, but concluded that this error did not change the correct result on the evidence and proper construction ([38]–[42]).
The Full Bench began with the principles for interpreting industrial instruments. The primary consideration is the words actually used and their context. That context can include the whole instrument and other associated documents, not just the immediate words around the disputed phrase ([36]). This meant the dispute could not be resolved simply by looking at company documents that described the transaction as a “restructure” or “reorganisation”. Those descriptions were relevant, but not decisive of what the award meant ([37], [43]).
The Full Bench rejected the Deputy President’s reliance on past practice. He had considered evidence about 1991 redundancies, including that employees received one month’s notice and that there was no evidence of a complaint that three months’ notice should have been paid ([38], referring to the material discussed in the decision below). The Full Bench held that “subsequent conduct in general is not relevant in interpreting a written document” ([39]). It also rejected Pasminco’s alternative argument that the earlier conduct was admissible because it preceded the 2001 award. Where evidence concerns prior statements or conduct reflecting actual intentions or expectations, it is not admissible to construe the instrument. The relevant focus, when considering surrounding circumstances, is the objective framework of facts and the parties’ presumed, rather than actual, intention ([41]).
That did not dispose of the appeal. The Full Bench then interpreted the clause afresh in the context of the award. It emphasised that the award was specific to the Elura Mine. Its title, parties and scope provision tied it to Pasminco Australia Ltd’s employees engaged in mining activities and metallurgical plant operations at that site ([48]). In that setting, the union’s proposed broader meaning of “reorganisation”, covering a restructure of the Pasminco Group, did not fit the language and scope of the award. The sale would end the relevant mine operation and the relationship between the award parties at that operation ([48]).
The economic context was substantial. Evidence before the Commission included consolidated losses of approximately $714.7 million and debts of about $2.9 billion, as well as falling zinc prices and adverse exchange-rate movements ([44]–[45]). The Full Bench accepted that economic factors were behind the decision to sell, notwithstanding the use of restructuring terminology in company materials ([46], [52]). It also considered the award’s distinction between causes initiated by an employer, such as technological change or reorganisation, and factors outside the employer’s control. The latter could reduce the employer’s ability to control the timing and notice it could provide ([51]).
The union argued that the retrenchments were not “necessary” because the mine could, in some circumstances, continue operating for a limited period. The Full Bench rejected a reading that would make “necessary” mean that no alternative was possible, regardless of the alternative’s commercial viability. It considered the Equity and Float option the most compelling commercial option, and accepted that it involved the sale of Elura ([50]–[52]). In those circumstances, it was reasonably open to find that the resulting retrenchments were necessary due to economic factors ([53]).
The judgment described the general interpretive approach as already well settled: industrial instruments are construed by attending primarily to their words and context ([36]). It did not purport to replace that approach. Instead, it clarified how that approach applied to evidence of conduct and to the specific award language before the Full Bench.
Before this decision, the Deputy President had used earlier conduct and the parties’ apparent historical application of the clause to resolve ambiguity. The Full Bench held that this was an error. It distinguished admissible objective surrounding circumstances from evidence of actual intentions or expectations, and stated that subsequent conduct is generally irrelevant to interpreting a written document ([39]–[41]). The judgment therefore cautions against treating a prior payment practice, lack of complaint, or party’s later explanation as proof of what an award means.
The Full Bench also clarified the contextual meaning of the specific terms in clause 29(vi). “Reorganisation” was interpreted by reference to the enterprise and operation covered by the award, not the wider corporate group ([48]). “Necessary due to economic factors” was not confined to cases where continued operation was literally impossible. The commercial circumstances and the nature of the available alternative mattered to the contextual interpretation ([49]–[53]).
There is an important qualification: although the Full Bench found an interpretive error, it did not allow the appeal. It considered the Deputy President’s ultimate construction correct on the evidence and its own reading of the award ([42]). The judgment therefore distinguishes an error in one part of the reasoning from whether that error warrants disturbing the final result.
At [36], the Full Bench said the “primary consideration is the actual words used and the context in which they appear”. In plain English, the decision-maker starts with the instrument itself and reads the disputed language as part of the whole arrangement, rather than deciding meaning from isolated words or labels used in other materials.
At [39], it held that “subsequent conduct in general is not relevant in interpreting a written document”. In practical terms, evidence that parties later acted in a particular way does not ordinarily establish what the written instrument means. The Full Bench treated the Deputy President’s reliance on the earlier redundancy practice as an error.
At [41], the Full Bench described the focus for surrounding circumstances as the “objective framework of facts” and the parties’ presumed, rather than actual, intention. The distinction is between objective context that may help explain the instrument and evidence that merely asserts what one or both parties privately intended or expected.
At [48], the Full Bench linked “reorganisation” to the award’s specific coverage of Elura Mine. The point was not that corporate restructuring can never amount to reorganisation. It was that this award was framed around a particular operation, so a group-wide transaction did not necessarily constitute a reorganisation of that operation for this clause.
At [50]–[53], the Full Bench rejected an interpretation of “necessary” that would exclude clause 29(vi)(a) whenever any theoretical alternative existed. It accepted that an option to continue operating for a few years did not prevent the sale from being economically necessary in the relevant context, given the commercial options and the financial circumstances.
The decision is most relevant where a dispute turns on the interpretation of an industrial award or agreement and the parties rely on past conduct to resolve uncertainty in its wording. The Full Bench’s warning at [39]–[41] is particularly pertinent where evidence is offered that a provision was previously applied in a particular way, that no one objected, or that a party understood a term to have a particular meaning.
It also matters where an instrument is enterprise-specific, but one party argues that a wider corporate restructure determines the meaning of a term such as “reorganisation”. The Full Bench examined the instrument’s title, parties and scope before deciding the relevant scale of analysis ([48]).
The economic-factor reasoning is relevant to disputes where an employer faces serious financial pressures, an operational sale or closure is proposed, and an alternative to retrenchment exists but may be commercially unattractive or short-term. The judgment does not say that every sale during financial difficulty is necessarily an economic-factor retrenchment. Its conclusion rested on the particular evidence, including the group’s financial position, the options considered, and the award’s wording ([44]–[53]).
The decision also indicates that labels in company documents are not conclusive. The Full Bench considered words such as “restructure” and “reorganisation” relevant but assessed the substance of what was happening in the context of the award ([37], [43]).
The supplied judgment contains no decisions issued after this Full Bench decision, so it does not establish how later courts or tribunals treated it. This analysis is limited to the authorities discussed by the Full Bench itself.
The Full Bench relied on earlier authorities for the interpretive framework. It referred to Kingmill Australia Pty Ltd t/a Thrifty Car Rental v Federated Clerks Union of Australia, New South Wales Branch and Construction, Forestry, Mining and Energy Union (New South Wales) v Delta Electricity as examples of the established approach to industrial instruments ([36]). It also referred to Australian Communication Exchange Ltd v Deputy Commissioner of Taxation in connection with the importance of text ([36]).
On past conduct, the Full Bench treated Seamen’s Union of Australia v Adelaide Steamship Company, Re Security Officers (Waterfront) Award, Health and Research Employees’ Association of New South Wales v Baptist Community Services NSW and ACT, and New South Wales Teachers Federation v Managing Director NSW TAFE Commission as supporting the proper approach ([39]). It considered Codelfa Construction Pty Ltd v State Rail Authority of NSW on the distinction between objective surrounding circumstances and evidence of actual intention ([41]). It considered, but rejected as a basis for the Deputy President’s approach, reliance on Merchant Service Guild and Australian Paper Manufacturers ([39]). The judgment’s treatment of these authorities should be read as describing the Full Bench’s reasoning, not as a survey of any subsequent development.
The Full Bench decided the dispute on the wording and coverage of this particular award, together with the evidence about Pasminco’s financial position and available options. The judgment does not establish how a differently worded instrument, applying across a corporate group rather than a particular mine, would treat a group-level sale or restructure.
The decision also does not set out a universal test for when economic pressures make retrenchments “necessary”. It rejected the union’s strict approach in the circumstances before it, but its conclusion depended on the commercial evidence and the specific structure of clause 29 ([49]–[53]). How the term applies where the evidence shows different options, less severe financial pressures, or a materially different relationship between the employer and the operation remains outside the decision’s determination.
The judgment states that subsequent conduct is generally not relevant, while also recognising that objective surrounding circumstances may be considered where there is ambiguity ([39]–[41]). It acknowledges that the line between prior conduct and surrounding circumstances is not always easy to draw ([41]). The decision provides a framework for that distinction, but does not resolve every possible evidentiary boundary.
Finally, the AWU raised grounds about whether employees had received notice while the sale remained conditional. The Full Bench’s reasons focus on the construction of clause 29(vi) and whether the redundancies were attributable to economic factors or reorganisation. The judgment does not set out a separate, general ruling on every notice-related factual contention raised on appeal.
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CITATION : Australian Workers' Union v Pasminco Australia Ltd and ors [2003] NSWIRComm 365 APPELLANT The Australian Workers' Union New South Wales
FIRST RESPONDENT Pasminco Australia Ltd
PARTIES : SECOND RESPONDENT Pasminco Cockle Creek Smelter Pty Ltd
THIRD RESPONDENT Electrical Trades Union of Australia, New South Wales Branch
FOURTH RESPONDENT Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch FILE NUMBER: IRC 4663 of 2003 CORAM: Wright J President; Boland J; Bishop C Appeal - Leave to appeal - Mine closure - Whether redundancies due to economic factors or reorganisation - Principles to be applied when interpreting industrial instruments - Whether subsequent conduct relevant in interpreting an industrial instrument - Whether prior conduct may be taken into account in interpreting an industrial instrument - Redundancies held to be necessary due to economic factors - Appeal dismissed CATCHWORDS : Award Interpretation - Appeal - Leave to appeal - Mine closure - Whether redundancies due to economic factors or reorganisation - Principles to be applied when interpreting industrial instruments - Whether subsequent conduct relevant in interpreting an industrial instrument - Whether prior conduct may be taken into account in interpreting an industrial instrument - Redundancies held to be necessary due to economic factors - Appeal dismissed LEGISLATION CITED : Industrial Relations Act 1996 s 130 s 136 s 175 Application for Redundancy Awards, Re (1994) 53 IR 419 Australian Communication Exchange Ltd v Deputy Commissioner of Taxation [2003] HCA 55 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Construction, Forestry, Mining and Energy Union (New South Wales) v Delta Electricity [2003] NSWIRComm 135 Elura Mines Enterprise (Consent) Award, Re 2001 Health and Research Employees' Association of New South Wales v Baptist Community Services NSW and ACT [2002] NSWIRComm 32 King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353 Kingmill Australia Pty Ltd t/a Thrifty Car Rental v Federated Clerks Union of Australia, New South Wales Branch (2001) 106 IR 217 CASES CITED : Knowles v Anglican Property Church Trust (No 2) (2000) 95 IR 380 Merchant Service Guild of Australia v Sydney Steam Collier Owners and Coal Stevedores Association (1958) 1 FLR 248 New South Wales Teachers Federation v Managing Director NSW TAFE Commission (2003) 123 IR 384 Professional Radio and Electronics Institute of Australasia v Qantas Airways Ltd (1984) 10 IR 1 Seamen's Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444, 445 Security Officers (Waterfront) Award, Re (1988) 26 IR 1 Shop, Distributive & Allied Employees Association (NSW) & Ors v Countdown Stores & Ors (Crockers Case) (1983) 7 IR 273, 292 Short v F W Hercus Pty Ltd (1993) 46 IR 128 State Rail Authority Firefighters Award, Re 2001 [2002] NSWIRComm 159 Australian Paper Manufacturers Ltd v Pulp and Paper Workers' Federation of Australia (1981) 55 FLR 303 HEARING DATES: 10/09/2003 DATE OF JUDGMENT: 12/05/2003
APPELLANT Mr A Hatcher of counsel Solicitor: Mr C Staff Jones Staff & Co LEGAL REPRESENTATIVES: FIRST & SECOND RESPONDENT Mr P Kite SC Solicitor: Ms Simons Minter Ellison
INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH
CORAM: WRIGHT J, President BOLAND J BISHOP C Friday 5 December 2003
Matter No IRC 4663 of 2003 THE AUSTRALIAN WORKERS' UNION, NEW SOUTH WALES v PASMINCO AUSTRALIA LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) AND ORS
Appeal from a decision of Deputy President Sams given in Matter No. IRC03/1836 on 1 August 2003. REASONS FOR DECISION [2003] NSWIRComm 365
1 The Australian Workers' Union, New South Wales ("the AWU") applied for leave to appeal and, subject to leave being granted, appeal from a decision of Sams DP given on 1 August 2003 where the Deputy President determined three dispute notifications filed under section 130 of the Industrial Relations Act 1996 by interpreting, pursuant to section 175 of the statute, a disputed clause in the Elura Mines Enterprise (Consent) Award 2001. The clause is gazetted at (2003) 339 New South Wales Industrial Gazette 718. His Honour's decision is reported at [2003] NSWIRComm 235.
2 The Full Bench heard the appeal on 9 October 2003. At the conclusion of the hearing on that day we gave our decision granting leave to appeal and dismissing the appeal. We indicated to the parties we would give reasons for our decision in due course. What follows are our reasons.
3 By way of background, Pasminco Australia Ltd and Pasminco Cockle Creek Smelter Pty Ltd were controlled entities of Pasminco Limited. Since September 2001, Pasminco Limited and all of its individual controlled entities, with the exception of one, had been operating subject to a Deed of Company Arrangement. Pasminco Australia Ltd decided to enter into a conditional sales agreement with Consolidated Broken Hill Co Ltd ("CBH") for the purchase by CBH of the Elura Mine located near Cobar, New South Wales and a port facility at Newcastle.
4 The decision of Sams DP dealt with three dispute notifications. The first was lodged by Pasminco Australia Ltd (subject to Deed of Company Arrangement) on 2 April 2003 as a consequence of strike action taken on 25 March 2003 by production and trades employees, members of the AWU, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (AMWU) and the Electrical Trades Union of Australia, New South Wales Branch (ETU). The other two notifications were lodged by the AWU and the ETU, in identical terms, alleging a failure by Pasminco to properly consult with the employees over the proposed redundancy of all the Elura Mine employees at the completion of the sale process.
5 The dispute proceedings were listed on the same day that the dispute notifications were lodged and, following compulsory conference proceedings, the Commission recommended a resumption of normal work as soon as practicable. The recommendation was not complied with and the matter was relisted on 3 April 2003 when the Commission issued a direction, pursuant to s 136(1)(a) of the Industrial Relations Act that there be an immediate return to normal work.
6 The direction was complied with and in proceedings later that day, the Unions sought the Commission's assistance in resolving the disputes by way of an interpretation of the notice of retrenchment provisions under clause 29(vi) of the Award. The matter was not resolved at conciliation conferences and the matter proceeded to arbitration.
7 The decision of Sams DP concerned an interpretation, pursuant to s175 of the Act, of clause 29 "Retrenchment" of the Award. That provision is in the following terms: 29. Retrenchment The Company will make every effort to avoid the need of having to retrench employees. However, in the event of retrenchments becoming necessary, it is agreed between the parties that the retrenchments are not voluntary and arise solely as a result of: - The Company's closure - Economic factors - Introduction of new technology - Restructuring At the time of retrenchment, the following would apply: (i) (a) Method of selection of employees to be retrenched. When the Company is not affecting ( sic ) a complete shutdown of its activities, the following method of selecting employees to be retrenched shall apply: - In deciding which employees are to be retrenched, the Company shall have the discretion to choose those employees to be retained, if any, where due consideration has to be made for the continuity of operations. - Accordingly, some occupation classes may either be fully exempted from the retrenchment, whilst other classes may need to be included in total or part thereof. (b) Employees would be paid the following severance payments in accordance with the State Test Case Provisions 1994: Years of Service Entitlements Under 45 Years of Age Less than 1 year Nil 1 year and less than 2 years 4 weeks 2 years and less and 3 years 7 weeks 3 years and less than 4 years 10 weeks 4 years and less than 5 years 12 weeks 5 years and less than 6 years 14 weeks 6 years and over 16 weeks
Where an employee is 45 years old or over, the entitlement shall be in accordance with the following scale: Years of Service Entitlement 45 Years of Age and Over Less than 1 year Nil 1 year and less than 2 years 5 weeks 2 years and less and 3 years 8.75 weeks 3 years and less than 4 years 12.5 weeks 4 years and less than 5 years 15 weeks 5 years and less than 6 years 17.5 weeks 6 years and over 20 weeks
Plus an additional one week's payment for each additional year of service, up to a maximum of 15 weeks payment. (c) Severance payments shall be paid on pro-rata years of service. (d) All severance payments shall be paid at the higher rate of: (i) the individuals average rostered shift earnings; or (ii) the Surface Mechanical Tradesmen's rate as per Clause 11. (e) "Weeks pay" means 42 hours at the rates calculated in accordance with (d) above. (ii) Long Service Leave (a) For employees with more than five years service, 54.6 hours payment for each year of service paid at average rostered earnings. (b) For employees with less than five years service, 54.6 hours payment for each year of service paid at average rostered earnings. (iii) All accrued entitlements to sick leave and annual leave will be paid out on termination. (iv) Employees who are living in Company accommodation may remain in their house or flat, rent free for up to four months from the date of retrenchment. (v) The Company will provide, on termination, an amount of $2,500 for married personnel and $1,200 for single personnel, to assist with relocation. (vi) (a) Should retrenchments become necessary due to economic factors, the Company guarantees to give individuals a minimum of four weeks notice of termination. (b) Should redundancies occur due to technological change or re-organisations, the Company guarantees to give individuals a minimum of three months notice of termination (our emphasis). (vii) An employee who is retrenched and is a member of the Company Superannuation Scheme shall receive his/her full account balance i.e. the employee's own contributions and all the Company's contributions, including interest. (viii) Retrenched employees shall be entitled to an exit health examination by an agreed local doctor, where possible. Such examination to include hearing tests, chest x-ray (if requested), lung capacity tests and such other tests as are deemed appropriate for the type of work in which the persons are engaged
8 The Deputy President characterised the question to be determined as "whether the present circumstances of the sale of the mine are for economic reasons as contemplated by cl 29(vi)(a) or as part of a Company reorganisation(s) contemplated by subclause (vi)(b)" (at [13]).
9 During the course of the decision, the Deputy President noted: 46 All employees of Pasminco will be terminated on completion of the sale and Pasminco will not have any involvement or interest in Elura mine once the sale is completed. Mr Howe gave evidence that the sale agreement provided for employees to be given eight weeks' actual notice of the termination of their employment. In cross examination, Mr Howe agreed that the eight weeks had been the subject of offers and counter offers during the negotiations for the sale. 47 Mr Howe added that the cash proceeds of the sale would be insufficient to cover the liability for severance payments to employees at the mine. The liabilities are estimated to be at least $10.7 million. This figure is likely to be higher as it had been calculated three to four months ago. An additional months notice would add $660,000 to this figure
10 The unions tendered evidence of Pasminco documents relating to the sale that used the expression 'restructure' and submitted that the terms "reorganisation" (as used in clause 29 (iv)(a)) and "restructure" were very similar. The Deputy President considered that: 83 The majority of the Company documents related to the sale, use the expression " restructure " - a point strongly advanced by the Unions in support of their case. However it seems to me that the concept of "restructure," in the context of Pasminco's grave financial state, does not sit comfortably with the generally understood notion of "restructure" or "reorganisation" in which an employer seeks to maximise profits or long term business viability. Here, it seems to me, the sale of the mine must be seen in the context of a company desperately attempting to extricate itself from almost overwhelming economic difficulties. Nothing will be left for it at Elura when the mine is sold. I concur with Mr Neil's submission that a "restructure" or "reorganisation" in the usual sense would ordinarily result in something being left over after the "restructure" or "reorganisation". That is plainly not the case here. … 93 Further, I do not agree with the Unions' contention that there is a distinction to be drawn with the word "retrenchments" used in subcl (vi)(a) and "redundancies" used in subcl (vi)(b). In my opinion, such a distinction is not reasonably open in the context of the clause as a whole which makes consistent reference to retrenchment and the conditions and benefits which flow from retrenchment. I agree with Mr Neil that the use of the two words "is a distinction without a difference" and is more likely to be a slip in the drafting. 94 In view of the Commission's conclusions, I have not found it necessary to make specific findings on whether the word "reorganisation" in cl 26(vi)(b) is only applicable to a reorganisation within the Elura Mine itself; although I doubt the word has the limited affect, contended for by Mr Neil. For example, one could well imagine a decision taken by the Pasminco Group to contract out a particular task or function across all its mining operations. It might well be open to conclude that the reorganisation in those circumstances warrants notice of termination of three months to the affected employees at each mine site.
11 The Deputy President also made certain observations as to periods of notice required in redundancy situations: 79 There is no doubt that the authorities of this Commission have adopted a distinction between notice to employees of redundancies caused by different factors. Shorter periods of notice will usually be found in situations brought about by economic circumstances beyond the employer's control and for which little planning or reorganisation of the employer's operations is possible. However, there is nothing in the authorities which, expressly or impliedly require that such circumstances be necessarily sudden or unexpected. It will vary from case to case. It is not too difficult to contemplate a situation where adverse economic factors are cumulative over a period of time. To my mind the key to the test of what constitutes economically based redundancies is whether the circumstances are beyond the control of the employer and/or which results in the employer suffering some adverse effect. 80 This situation is to be contrasted with a deliberate and planned decision by an employer to introduce new technology or restructure or reorganise its operations through company merger, takeover or asset sale. Obviously, longer periods of notice to affected employees will not only be practically available but, as a matter of good industrial citizenship, should be provided. 81 There can be no doubt that the Pasminco Group has experienced serious economic problems in recent times. It is difficult to comprehend how this could not be so when Pasminco was placed in voluntary administration in September 2001 with consolidated losses of $715.7 million and debts in the order of $2.9 billion. I note the evidence of Mr Howe in this regard was not called into question. 82 However it is equally true, I think, to say that Pasminco could, and did make choices about its future that might not have necessarily involved the sale of the Elura Mine. Indeed, if the present sale proposal is not consummated, it is envisaged that the mine will continue to operate under its present ownership. That is not, in any way, a criticism of the decision to sell the mine in the current circumstances. However in my opinion, it was not a decision, in stricto sensu , which could be said to be beyond the employer's control.
12 The Deputy President reviewed the principles applicable in the interpretation of award provisions as recently considered by the Full Bench in Re State Rail Authority Firefighters Award 2001 [2002] NSWIRComm 159. The Deputy President found as particularly relevant to his determination of the matter the principle stated in Merchant Service Guild of Australia v Sydney Steam Collier Owners and Coal Stevedores Association (1958) 1 FLR 248 that "ambiguous provisions of an industrial agreement, construed and acted upon by the parties in a particular manner for many years, should be construed in the same manner by the Court". The Deputy President also referred to the following passage in Re Security Officers (Waterfront) Award (1988) 26 IR 1 at 7: In a case such as this where misunderstandings arise concerning the effect of what is a compromise reached between parties to an industrial dispute, there is considerable attraction towards adopting the approach made in some earlier cases in this jurisdiction. In those cases regard has been paid to the subsequent long-standing practice of parties to establish the meaning of an award which has been otherwise uncertain (see Re Wire Netting Makers &c (Lysaghts) Award [1942] AR (NSW) 531; Re Rockchoppers and Sewer Miners (State) Award [1927] AR (NSW) 283; Re Maritime Services Board Masters and Mates and Engineers - Pilot Steamers Award [1958] AR (NSW) 330 and Crown Employees (Toll Collectors - Department of Main Roads) Award [1969] AR (NSW) 12.
13 His Honour considered the disputed clause in the following way: 84 On one view of it, the express wording of subcl 29(vi) might be said not to cover the circumstances of company closure, even though in the preamble to the clause it refers to retrenchments caused by four factors, one of which is company closure. 85 Subclause (vi) expressly covers notice in circumstances of economic factors, technological change and re-organisations. It is curious that the different notice provisions in subcl (vi)(a) and (vi)(b) do not expressly use the words "company closure" or "restructure." Herein, of course, lies the conundrum. If the disputed expressions are not included, where do they fit? Was this a deliberate intention of the parties to exclude such circumstances from the notice previsions? I think not. Rather, it would appear most likely to have been an oversight or a slip in the drafting that has now created an ambiguity. 86 In order to reconcile this ambiguity, I have considered particularly apposite the manner in which the award clause was actually used and applied in the past. This approach is consistent with the conclusion in Kingmill and the other authorities to which I earlier referred. In this regard I have found the Metalliferous Miners (Elura Mine) Award (Matters 435 and 784 of 1991) judgment of Cullen, J in 1992 to be analogous to the circumstances that confront the parties in this case. 87 The first observation to be made is that the wording of the existing cl 29(vi) was in identical terms in the 1991 agreement (the provision having been first inserted in 1987). Moreover that agreement was made by consent. 88 Secondly, his Honour identified the major factors resulting in the 225 redundancies as "the massive downturn in metal prices in association with adverse exchange rates." The Unions in the present case did not take issue with these two factors as being directly relevant to the present situation. It was not put, nor could it be, I think, that such factors are within the control of Pasminco as the employer. 89 Thirdly, the 1991 redundancies saw a massive reduction in employment from 287 to 65. On one view of it, the 1991 redundancies would likely have had a more severe impact on the employees and the Cobar community than what is envisaged in CBH's purchase of an ongoing operation at Elura in 2003. I accept, of course that all Pasminco employees will be made redundant at the point of sale. It is unclear at this stage how many of these employees will obtain employment with the new owner. No doubt some will. 90 Fourthly, and importantly, I accept the documentary evidence provided by Mr Martin that redundant employees in 1991 were paid one months' notice. There is no evidence that such a payment was a cause of any complaint, grievance or claim that the three months' notice provision in subcl (b) should have applied. 91 In these circumstances, I am compelled to the view that the parties had intended and applied the one month notice provision to a redundancy situation resulting from falling metal prices and adverse exchange rates. It would seem inescapable that this situation was based on economic factors beyond the control of the employer. While the result in 2003 will be different, i.e. a new owner, the circumstances are not dissimilar to those in 1991.
14 The Deputy President concluded at par [100] that the Commission would interpret subcl 29(vi)(a) and not subcl 29 (vi)(b) of the Elura Mine Enterprise (Consent) Award as applying to the circumstances of the sale of the Elura Mine by Pasminco to CBH.
15 The AWU sought leave to appeal pursuant to section 187(a) of the Industrial Relations Act. It was submitted that it was in the public interest that leave to appeal should be granted because the decision manifested a number of serious errors. It was submitted, in particular, that the Deputy President erred:
In finding that, for the purposes of the disputed clause, redundancies that arise in the circumstances of the sale are "necessary due to economic factors" and not due to a company reorganisation or restructure;
In finding that the sale does not fall within a scope of a company "reorganisation" for the purposes of the disputed clause because such a reorganisation "would ordinarily result in something being left after the "restructure" or "reorganisation";
By failing to give effect to his own assessment that the sale was not beyond Pasminco's control in circumstances where the Deputy President sought to distinguish redundancies arising from "economic factors" from those arising from a "reorganisation" on the basis that the former "are beyond the control of the employer and/or which results in the employer suffering some adverse effect"; and
In finding that all employees of Pasminco had already received notice of the redundancies in circumstances where the sale remained contingent and conditional.
16 It was further submitted that the appeal has wider implications for the jurisprudence of the Commission as it concerned the proper principles to be applied to the interpretation of industrial instruments. This included whether it was proper to have regard to the previous conduct of the parties in exercising the powers of interpretation under s 175 of the Act.
17 Senior counsel for Pasminco submitted that leave to appeal should not be granted, as the application did not satisfy the public interest test; the appeal raised no question of wider application as the Deputy President had regard to well-established principles of award interpretation and applied these principles to unchallenged evidence.
18 The AWU pleaded ten grounds of appeal. In substance, the union challenged the Deputy President's interpretation of clause 29(vi) of the award and a number of findings made by the Deputy President. The main grounds of appeal were: 1. That the Deputy President erred in failing to consider or give sufficient weight to the words of the disputed clause as a whole and read in context;
That the Deputy President erred in irrelevantly considering the previous conduct in the circumstances of redundancies in 1991- 1992 at the Elura mine for the purposes of the interpretation and construction of the disputed clause; and
Alternatively, if the previous conduct of the parties was not irrelevant, that the Deputy President erred in failing to consider of give sufficient to the fact that the present circumstances are different.
19 The AWU submitted that Sams DP's construction of the terms "restructure" and "reorganisation", in particular and the requirement that "something" of the employer be "left over", was inconsistent with the distinction made in Shop, Distributive & Allied Employees Association (NSW) & Ors v Countdown Stores & Ors (Crockers Case) (1983) 7 IR 273 at 292 and 294 as between retrenchment on economic grounds and retrenchment arising from company restructures, encompassing reconstructions, mergers and takeovers. In any event, it was submitted the mine was but a single part of Pasminco's range of activities and the sale would leave intact its other business activities.
20 Counsel for the AWU submitted the sale of the mine was not necessitated by urgent economic factors. In light of the recognition by the Deputy President that if the sale did not proceed, the mine would continue to operate under its present ownership, the retrenchments from the sale were not "necessary", as required by subclause (a) of the disputed clause.
21 The union further submitted that the authorities did not support the proposition that the concept of "reorganisation" could not comprehend some element of economic hardship for the employer.
22 Counsel for the union submitted that the Merchant Service Guild case and Re Security Officers (Waterfront) Award were not good law and in any case, had no application to the circumstances of the sale. The fact that one of the parties applied the disputed clause a particular way in different circumstances on a single occasion over ten years ago did not constitute "the parties construing and acting upon ambiguous provisions in a particular manner for many years" as was the case in the Merchant Service Guild, nor did it constitute "an understanding reached by the parties" as was the case in Re Security Officers (Waterfront) Award.
23 Contrary to the Deputy President's application of these authorities, the AWU submitted that it was well settled that it is impermissible to have regard to the conduct of parties bound by an award or agreement after it has been made for the purposes of interpretation: see for example Seamen's Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444, 445.
24 The union submitted that the Deputy President failed to consider or give sufficient weight to the following relevant considerations: 1. Evidence from the Pasminco Group itself which demonstrated that retrenchments had not become necessary due to economic factors but that the sale was part of the Pasminco Group's restructure of its operations and balance sheet.
25 It was submitted that the Deputy President took into account the following irrelevant considerations:
26 The union submitted that to the extent economic factors were relevant, those factors merely formed a basis of proceeding with the company reorganisation or restructure. The immediate and direct cause of the retrenchments was the reorganisation itself, in the form of the sale. Consistent with the Deputy President's findings, it was not necessary for the mine to be sold and that absent a sale, the mine would continue to operate until the end of its life.
27 Given the length of time during which the reorganisation and the sale was to be effected, it was submitted that there was no basis for applying the underlying rationale of subclause (a) of the disputed clause, which provides for a short period of notice to cover employers which are forced to make retrenchments in circumstances of genuine economic necessity.
28 Senior counsel for Pasminco submitted that consistent with the principles of award interpretation, in particular the principle that words be construed in their context, the Commission was required to have regard to the circumstances giving rise to the redundancies and their ultimate cause when interpreting the disputed clause. If the Union's position on interpretation was adopted all redundancies would fall within sub-paragraph (b) of the disputed clause. The real purpose and context to the disputed clause, and in particular sub-paragraph (a) was to enable parties to take into account and make accommodation for the ultimate reasons or causes of a redundancy.
29 The evidence before the Commission clearly set out the adverse effects that Pasminco had suffered as a result of various external economic factors, including the decline of the world zinc price and currency fluctuations, upon which Pasminco had based their hedge positions. These adverse effects were due to economic factors that were beyond the control of Pasminco. Regardless of the words used by Pasminco (or its administrators), including "restructure", "reorganisation" or "rationalisation", it was submitted that there was no doubt that Pasminco's decision to sell the Elura Mine was made in order to survive and not to enhance the performance or profitability of an ongoing successful operation. This analysis is consistent with the case law including the findings of Fisher P in Crocker's case, Shop Distributive & Allied Employees' Association (NSW) v Myer (NSW) Ltd (1983) 7 IR 300 and Peterson J's observations (albeit in dissent) in Re Application for Redundancy Awards (1994) 53 IR 419.
30 Pasminco rejected the union's submission that sub-paragraph (a) of the disputed clause was directed at "crisis" situations where economic factors over a short period of time had forced employers to make retrenchments. It was contended this submission could not be substantiated by reference to any authority of this Commission. Further, the relevant authorities import no temporal element into whether the redundancies are caused by "economic factors".
31 Contrary to the union's submission, senior counsel said there was evidence before the Commission of the fact that the sale of the Mine was "necessary". The sale was part of the Equity and Float option, proposed by the creditors in order to rescue the Pasminco Group from its financial difficulties. Mr Howe, the General Manager, Strategic Planning and Development, Pasminco Ltd, also gave unchallenged evidence that if the Equity and Float option did not proceed, the liquidation of the entire Pasminco group was an option and that even if Pasminco continued to operate the Mine, it could only have been for a short term basis, as Pasminco was unable to make the necessary investment to extend the life of the Mine.
32 As to the relevance of the conduct of parties in award interpretation, Pasminco agreed that there was some doubt about whether the conduct of parties could be taken into account when interpreting an award after it has been made. However, Pasminco submitted that the relevant conduct considered by the Deputy President was the union's acceptance of what constituted "economic factors" for the purposes of the disputed clause in 1991/1992 and its continued acceptance in accepting the inclusion of the terms of the disputed clause in each of the industrial instruments which followed the redundancies in 1991/1992, all of which was conduct prior to the making of the 2001 Award. It was submitted there is authority for the consideration of the conduct of parties prior to the award or agreement being made: see for example Short v F W Hercus Pty Ltd (1993) 46 IR 128 and Professional Radio and Electronics Institute of Australasia v Qantas Airways Ltd (1984) 10 IR 1.
33 In respect of the alleged irrelevant considerations and errors of fact identified by the union, senior counsel for Pasminco submitted that the Deputy President's observations were made by way of obiter only and had no bearing upon the Deputy President's final decision in the proceedings below.
34 An appeal to the Full Bench of the Commission may be made only with the leave of the Full Bench: s 188 of the Industrial Relations Act. The principles to be applied in determinations of leave to appeal are well established. Leave to appeal will not be granted lightly and will be restricted to the class of cases referred to in Knowles v Anglican Property Church Trust (No 2) (2000) 95 IR 380 at 381 - 382 (see also King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353 at [52] - [55]).
35 For reasons that are discussed below, we have determined that leave to appeal should be granted in this matter.
36 The relevant principles to be applied when interpreting industrial instruments are well settled. See for example Kingmill Australia Pty Ltd t/a Thrifty Car Rental v Federated Clerks Union of Australia, New South Wales Branch (2001) 106 IR 217 and Construction, Forestry, Mining and Energy Union (New South Wales) v Delta Electricity [2003] NSWIRComm 135 at [44] - [46]. In essence, the primary consideration is the actual words used and the context in which they appear. The context of the words used may extend beyond those in the immediate proximity, to the document as a whole and also to other documents with which there is an association. The importance of the language or text of the instrument in its construction was referred to in the recent High Court decision in Australian Communication Exchange Ltd v Deputy Commissioner of Taxation [2003] HCA 55 at [8] per Gleeson CJ (in dissent), [38] per McHugh, Gummow, Callinan, Heydon JJ, [59] per Kirby J (in dissent) and [115] per Hayne J (in dissent).
37 Although clause 29(vi) of the Award appears to clearly distinguish between retrenchment or redundancies on distinctly different bases, the resolution of the issue in these proceedings is, as recognised by Sams DP, not without difficulty because of the particular set of factual circumstances surrounding the closure of the Pasminco operation at the Elura Mine; these circumstances having as they did elements both of corporate reorganisation and significant economic factors. The situation was further complicated by the existence of a large amount of material which was understandably adduced in evidence emanating from Pasminco which described what was happening at the company's operation at Elura and elsewhere as variously "a reorganisation", "restructuring", or by the use of similar words or phrases, while the company was arguing that clause 29(vi)(a) (that is, retrenchments becoming necessary due to economic factors) was the relevant provision.
38 We consider that the Deputy President's approach to the interpretation of cl 29(vi) involved the erroneous application of relevant authorities on award interpretation and the reliance upon inadmissible evidence as to what the parties understood the relevant provisions to mean or how they had been interpreted in a practical way in the past. See, for example, paragraph [53] of the Deputy President's decision, which was in these terms: [53] Mr Martin said the wording of the present cl 29(vi) was first inserted by consent in the Elura Mine Industrial Agreement in 1987. He said the terms of the current award had been negotiated at an enterprise level. It was his understanding that " reorganisation " in cl 29(vi)(b) was intended only to refer to a reorganisation at the Elura Mine itself. and also paragraphs [55] and [56] which were as follows: [55] Mr Martin had made inquires of the Company's 1991 financial records. These revealed that employees made redundant at the time received one month's notice. Mr Martin had made further inquiries and was informed (by Paul Laurent - an employee at the time) that the mine had sustained considerable losses and that management had determined that staffing had to be reduced. Management had described the process as part of a " restructure " necessitated by economic factors. [56] So far as Mr Martin was aware, no employee or union had complained about the one month's notice payments in 1991. No union or employee had asserted an entitlement to three months' notice. In cross examination, Mr Martin agreed that the word " restructure " was not to be found in the 1991 employees' certificates of service. However, Mr Paul Laurent, a project metallurgist who had been very much involved in the redundancies at the time, had told him of the circumstances being described as a " restructure ".
39 We consider that the adoption of that approach, which was said to be warranted by authorities such as the Merchant Service Guild Case and Australian Paper Manufacturers Ltd v Pulp and Paper Workers' Federation of Australia (1981) 55 FLR 303, is wrong in principle and shows appealable error such that it is appropriate to grant leave to appeal. We consider the proper approach is that set out in authorities such as Seamen's Union of Australia v Adelaide Steamship Company (1976) 46 FLR 444 at 445, Re Security Officers (Waterfront) Award (1988) 26 IR 1, 7 - 8, Health and Research Employees' Association of New South Wales v Baptist Community Services NSW and ACT [2002] NSWIRComm 32 at [74] and [75] and New South Wales Teachers Federation v Managing Director NSW TAFE Commission (2003) 123 IR 384 at [28]. That is, subsequent conduct in general is not relevant in interpreting a written document.
40 Before turning to our consideration of the disputed clause, we wish to make brief observations on the submission made by Pasminco that the conduct considered by the Deputy President was conduct prior to the making of the 2001 award and it is permissible to consider a history of consistent conduct: Short v F W Hercus Pty Ltd and Professional Radio and Electronics Institute of Australasia v Qantas Airways Ltd.
41 It is clear that in construing an instrument, if there is ambiguity, regard may be had to evidence of surrounding circumstances: see Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352 per Mason J. However, we note that the line between prior conduct and surrounding circumstances is not always easily ascertainable. The basic principle when considering evidence of surrounding circumstances in construing an instrument is that the focus is upon the objective framework of facts and the presumed, rather than actual, intention of the parties. Evidence of prior statements and conduct which are reflective of the parties' actual intention or expectations is not admissible for the purposes of construction: see Mason J's consideration in Codelfa at 352. Consequently, we do not accept the Pasminco's contentions that the AWU's prior conduct is supportive of its interpretation of c1 29(vi).
42 The question that then arises is whether these errors lead to appealable error such that the appeal should be upheld. Notwithstanding our view that the Deputy President erred in his reliance on the past interpretation of the disputed clause, we are not persuaded that the Deputy President was incorrect in his conclusions on the evidence or as to the proper construction of cl 29 (vi). 43 We consider that the Deputy President was correct in accepting the submissions of Pasminco that the interpretation of the award had to be approached on the basis that it was an enterprise specific award and the relevant phrases in the two limbs of cl 29(vi) were to be approached by reference to the consideration that the award was referring to, or speaking of the circumstances at, the particular mine at Cobar. In the somewhat confusing factual situation before the Commission it was necessary to look at the substance of what was occurring rather than its form or how it was being described in relevant documents. Although such descriptions were important and relevant to the issue of construction, they could not necessarily be decisive of the issue. For example, one view of the facts was that Pasminco was, or the Pasminco group of companies were, the subject of a restructure or reorganisation but the situation is not as clear in that respect as to the operation at the Elura Mine.
44 The evidence before the Commission was that the Pasminco Group had experienced economic difficulties in recent times. Pasminco Limited and the substantial majority of its wholly owned subsidiaries including Pasminco Australia Ltd and Pasminco Cockle Creek Smelter Pty Ltd were placed in voluntary administration in September 2001 and each company commenced operation under a Deed of Company Arrangement. Counsel for Pasminco tendered evidence, which was not questioned by the unions, showing consolidated losses of $714.7 million and debts owing of approximately $2.9 billion. The Deputy President accepted that Pasminco was facing serious economic problems and that the cause of this financial difficulty resulted partly from "falling metal prices and adverse exchange rates", economic factors that he found were "beyond the control of the employer".
45 The documentary evidence before the Commission supports the proposition that the price of zinc declined since 1990. For example, the Deed Administrators' Report 2002 on the Pasminco Group stated that the London Metal Exchange (LME) zinc price decreased by 24.7 per cent from an average US $792 per tonne in 2002 compared with US $ 1,052 per tonne in 2001. The half year results for the 2002/2003 financial year showed that the zinc price continue to decrease and in the six months ended 31 December 2002, averaged US $762. In that same six months period, the US/Australian dollar exchange rate appreciated from US 51.38 cents to US 55.53 cents.
46 The AWU submitted, below and on appeal, that even if relevant, these economic factors merely formed a basis of or triggered a decision to undertake a company reorganisation or restructure in order to improve the company's performance and profitability. It was submitted the sale of the mine was in effect, a "reorganisation" of the company.
47 It was also contended for the AWU that the retrenchments did not become "necessary" due to economic circumstances because there was evidence to the effect that one option for the company in the event a sale did not eventuate was to continue to operate the mine for three years to the end of its current life. Reliance was placed on the Macquarie Dictionary definition of "necessary" as meaning "unavoidable".
48 Firstly, it is difficult to see how the sale of the mine could be categorised as a "reorganisation" in the ordinary sense of the word. Upon completion of the sale, the subject of the award, the mine itself, and the relationship between the parties to the Award, would go out of existence. The unions contended below that the sale should be seen as part of a reorganisation of the broader Pasminco Group. Applying the general principles of construction we referred to earlier, the word "reorganisation" must be construed in the context of the Award as a whole. There are a number of pertinent provisions of the Award for the present purposes. Clause 1, the title clause, indicates the Award relates to the Elura Mine. Clause 3 sets out the parties bound to the Award, namely, Pasminco Australia Limited and the AWU, AMWU and the ETU (NSW Branch). Clause 4 states that the award applies to "all employees of the Company eligible to be members of the unions employed in classifications covered by this Award engaged in or associated with mining activities and metallurgical plant operations at the Elura Mine". It is clear from these clauses that the Award relates specifically to the activities and operations of Pasminco Australia Ltd at its Elura Mine. To accept the union's broader construction would not be consistent with the language of the Award.
49 As with the word "reorganisation", the word "necessary" has to be construed in its contextual setting. The Award makes special provision in cl 29 for retrenchments caused by: the company's closure; economic factors; introduction of new technology; and, restructuring. One of those provisions relates to extended periods of notice. Where "retrenchments become necessary due to economic factors" an employee is to receive four weeks notice of termination. Where the retrenchments "occur due to technological change or re-organisations" the employee is entitled to three months' notice.
50 The retrenchments that followed the sale of the mine were not due to technological change and, as we have found, were not due to reorganisation. Overwhelmingly, the decision to sell the mine was brought about by economic factors. If we were to adopt the AWU's contention, that in order for cl 29(vi)(a) to apply it had to be established that any retrenchment was unavoidable because of economic factors, it would mean that although economic factors were behind the decision to retrench, if there were some other option such as continuing to operate the mine for a limited period, no matter how commercially undesirable or unviable that option might be, it could not be said the retrenchments were "necessary due to economic factors". That would mean, of course, on the AWU's submission, that in such circumstances if the retrenchments went ahead, cl 29(vi)(a) would not apply. Nor would cl 29(vi)(b) because the retrenchments would not be due to technological change or reorganisation.
51 We consider that the intention of the parties, in agreeing to the terms of cl 29 of the Award, was that in circumstances of involuntary retrenchment, employees should receive extended periods of notice, whatever the cause of the involuntary retrenchment. The four causes of involuntary retrenchments referred to in the preamble to cl 29 were, in our opinion, intended to cover the field. Where the retrenchment was due to causes initiated by the employer, such as the introduction of technological change or reorganisation of the company's operations in order, for example, to be more competitive, the Award provided for a longer period of notice for those to be retrenched. It may be inferred that the parties agreed to this longer period of notice because in being the initiator of change the employer would have been in a position to exercise control over timing and other relevant considerations in introducing the new technology or undertaking the reorganisation. On the other hand, retrenchments caused by factors outside the employer's control would reduce the employer's flexibility to influence the amount of notice it was able to provide to employees to be retrenched.
52 In the present case it is clear that, overwhelmingly, the retrenchments were due to economic factors. These economic factors left Pasminco no choice but to restructure its operations in order to survive in the long term. Whilst one option apparently involved continuing to operate the mine for a few years, it was a short-term option and one not favoured by the board of Pasminco or by the Administrator. The most compelling option commercially was the Equity and Float option whereby current operating assets of the Pasminco Group would be transferred to a new entity and equity in the new company would be transferred to creditors. This option was considered by the Administrators to be in the best interests of creditors but it necessarily involved the sale of the Elura Mine. The other option was to seek the sale of all of Pasminco's assets and distribute the proceeds in the order of priority set out by the Corporations Law.
53 Given these particular circumstances, we consider that it was reasonably open on the evidence for the Deputy President to conclude that the retrenchments resulting from the sale of the mine were necessary due to economic factors.
54 We confirm the following orders as made on 9 October 2003 in disposition of these proceedings: 1 Leave to appeal is granted. 2 The appeal is dismissed.
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.
Australian Workers' Union
Pasminco Australia Ltd and ors
(1994) 53 IR 419
(1982) 149 CLR 337
(2001) 106 IR 217
(2000) 95 IR 380
(1958) 1 FLR 248
(2003) 123 IR 384
(1984) 10 IR 1
(1976) 46 FLR 444
(1988) 26 IR 1
(1983) 7 IR 273
(1993) 46 IR 128
(1981) 55 FLR 303
(1983) 7 IR 300
[2003] HCA 55
Leave to appeal was granted and the appeal was dismissed. The Full Bench confirmed the orders made on 9 October 2003 ([54]).