Helensburgh Coal Pty Ltd v Bartley & Ors

[2025] HCATrans 15

[2025] HCATrans 015

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S119 of 2024

B e t w e e n -

HELENSBURGH COAL PTY LTD

Appellant

and

NEIL BARTLEY AND OTHERS NAMED IN THE SCHEDULE

Respondents

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON THURSDAY, 6 MARCH 2025, AT 10.00 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friends MR A.M. POMERENKE, KC and MR P.M. ZIELINSKI for the appellant.  (instructed by MinterEllison)

MR J.T. GLEESON, SC:   May it please the Court, I appear with MR P.A. BONCARDO for the first to twenty‑second respondents.  (instructed by Mining and Energy Union)

MR GLEESON:   There is a submitting appearance for the twenty‑third respondent.

GAGELER CJ:   Yes.  Thank you, Mr Gleeson.  The transcript should record that Justice Edelman is participating in the hearing remotely.  Mr Walker.

MR WALKER:   May it please the Court.  Your Honours, having seen the record – the formal record, in this case – your Honours will appreciate the jarring nature of an object of the relevant Part of the Fair Work Act, namely, Part 3‑2, which in subsection 381(1) stipulates as an object of the Part to produce, in subparagraph (b)(i):

quick, flexible and informal –

procedures for dealing with unfair dismissal cases.  The emphasis in this case, so far as we are concerned and the interpretation that we urge as decisive, is upon the implications of requiring procedures dealing with unfair dismissal to be quick and informal.

Against that background, as your Honours appreciate, this is an appeal from the refusal of the Full Court to detect the argued jurisdictional error by the Full Bench in its own appeal by way of rehearing under the statute from the Commission.  That nested set of arguments, framed differently, obviously, the statutory appeal by way of rehearing to the Full Bench, then the constitutional writs sought against the Full Bench in the Full Court, all turns upon the consequences of the threshold issue for an unfair dismissal claim which is set up under the following provisions.

Can I take your Honours, please, in the book of authorities, volume 1 in Part A, page 53 of the print, starting with section 385 which defines or explains what it means to say that a person has been unfairly dismissed as being the state of affairs upon which the Commission:

is satisfied that:

(a)the person has been dismissed; and

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

(c)the dismissal was not consistent with the Small Business Fair Dismissal Code; and –

all of these are required – and, (d), the one at the heart of our argument:

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

We can pass over section 386 not because it is not important – it plainly is – but because it does not have any particular purchase in the issues of this case.  Similarly, in section 387, their self-evident importance cannot be overstated, but they are not going to be at least at the heart of the interpretive question, although some expressions your Honours may consider throw some light on some aspects of the argument we are going to advance.  But I draw to attention that in section 387, the specified criteria for:

considering whether . . . a dismissal was harsh, unjust or unreasonable –

in paragraphs (a) to (g) are topped off by:

(h)any other matters that the FWC considers relevant.

It is, as our friends have understandably pointed to, a matter which may or may not cast some light on the second issue, to which we will come, and separately, namely, what I will call the standard of appellate review which governed the proper approach by the Full Bench to its statutory appeal by way of rehearing with respect to the Commission.

The meaning of “genuine redundancy” is in section 389(2) of which is right at the heart of our argument.  Subsection (1) defines a person’s dismissal as a case of genuine redundancy if two things are true.  In the first, there is this notion of requirement in a double sense:

the person’s employer no longer required the person’s job to be performed by anyone –

and the force of “anyone”, of course, given a colloquial understanding of redundancy, is that it means an individual has not been selected, but rather the position or job or role is no longer necessary, hence the ordinary English of the word “redundant”.  The second sense in which some notion of requirement comes in the necessary attributable reason for that redundancy – the job no longer being required to be performed by anyone.  That is because of what is called:

changes in the operational requirements of the employer’s enterprise –

It might be said that this is an example, in an extended sense, of legislative drafting in passive rather than active voice – and more is the pity – because it does raise the question, which requires to be answered, who is doing the requirement?  Who perceives or understands a state of affairs as falling to be described as amounting to a requirement?  On the one hand, a requirement that a job no longer be performed by anyone – that is, no longer required – and on the other hand, that stemming from what are called the “operational requirements of the employer’s enterprise”.

We submit that the whole of the language and the nature of the subject matter in paragraph 389(1)(a) fairly plainly indicates that we are talking about the requirements as perceived and articulated by the employer.  Or, to put it another way, the only two other possible focuses of the notion of a requirement would be an employee seeking relief under this Part – and that would seem to be very odd, in a statute explicitly devoted to achieving balance, including a balance recognising the needs of business, to have substituted the employee’s judgment of such matters concerning the enterprise for the employer, but that can be dismissed out of hand.  It leaves only then, of course, the tribunal.

Your Honours have been pressed in writing – no doubt it will be returned to in address – concerning the so‑called expert or specialist nature of the tribunal in question, none of which, in our submission, has any substance whatever for present purposes.  The tribunal has never claimed to be, in any of its guises over the century, expert or specialist in the running of businesses for the derivation of profit, in accordance with the dictates of company law in the case of corporations.

The notion of requirement has to do with a conclusion or decision reached in relation to matters which are, obviously, entirely case‑specific – may well involve individuals’ some might say idiosyncratic questions of appetite for risk, thus predicted downturns in revenue leading some employers to batten down the hatches more quickly than others – none of which, in our submission, is justiciable, that is, may be dissented from an employee so as to carry the day or a tribunal so as to substitute its business judgment for that of the corporation.

So, 389(1)(a), when it comes to questions of genuine redundancy, no doubt looked to the honesty of an articulated position, as it should.  But if there is an honestly articulated position to the effect that the employer no longer requires a job to be performed by anyone – and the language of (a) is intractable – it is the person’s employer that no longer required the job to be performed by anyone – then it must be, as well, that the changes in operational requirements of the employer’s enterprise means according to the likes of and the judgment of the employer.

GORDON J:   Can I ask one question, which you might want to come back to, Mr Walker, and that is, when you read 385(d), which we are considering, you must already have reached the conclusion, must you, that the dismissal was harsh, unjust or unreasonable?

MR WALKER:   No.

GORDON J:   Or is it sufficient that it is just (d)?

MR WALKER:   The language of 385 certainly requires the concurrent affirmative presence of each element – (a), (b), (c), (d) ‑ ‑ ‑

GORDON J:   Sorry, that is what I meant to say.

MR WALKER:   And the fact that (a) comes before (d), I am not taking a point about that.  No, but the real – the proper, substantive response to your Honour is 396, to which I am about to come, sequences the matter differently.

GORDON J:   That is the initial hurdle question.

MR WALKER:   Yes.  It is the “before considering the merits of the application”.  Would your Honours permit me to come to that?  It will be only a few minutes.

GORDON J:   When you do that, could you just take into account and answer what you took us to before, which is 387(f), which is talking about:

the degree to which the size of the employer’s enterprise would be likely to impact –

et cetera.  In other words, are there factors that are taken out of this analysis which you are dealing with under 389(1)(a), or are they a separate exercise?

MR WALKER:   They are separate.

GORDON J:   Thank you.

MR WALKER:   May I say, that, as well, will require consideration of 396.  But “separate” does not mean it is not part of a single overall enterprise.  It is – I should not say “enterprise” – a single overall exercise of dealing with an unfair dismissal claim.  Section 396 is very important in understanding how that is organised.  Section 396, for reasons I am about to come to, will not itself call for application, once and for all, of 387 criteria.

GORDON J:   Thank you.

MR WALKER:   And it is for those reasons that – it is not as if they are put to one side, it is that it is a staged inquiry.

GORDON J:   Thank you.

MR WALKER:   Now, in 389(2), the companion provision looks to a stipulation of the mark of something which is not a case of genuine redundancy.  It needs to be said immediately, it does not exhaustively, of course, describe something which is not a case of genuine redundancy, because the simple failure to make out the positive requirements of subsection (1) would be enough to mean that it is not a case of genuine redundancy.

But, assuming that one has made out – I think I need to say prima facie that it is a case of genuine redundancy, because this is ticking the boxes of (1)(a) and (1)(b) – subsection (2) operates so as nonetheless to produce a conclusion of:

not a case of genuine redundancy if –

the matters in subsection (2) are made out, and that is where this case was fought, because that matter is a judgment as to what might be called a counterfactual – not, perhaps, in the strict sense.  That is, a state of affairs different from a dismissal remaining effective as a dismissal.  Namely:

if it would have been reasonable in all the circumstances for the person to be redeployed –

And, again, we have passive voice, but it really means, I am afraid – bearing in mind the remedies coming up – that, at this point, it is an imagined redeployment by an employer leading to remedies which will be an imposed reinstatement or, alternatively, compensation by the tribunal.  But the focus is still on what would have been reasonable with respect to redeployment, which is – par excellence, particularly given the provisions I have already referred to – a matter for the employer.

So, the employer who is no longer requiring the job to be performed by anyone is now to be supposed, in subsection (2), to be the person about whom one asks the question:  would it have been reasonable for the person to be redeployed?  That must mean by the employer, obviously, making choices of exactly the same kind and moment with respect to that person’s redeployment as had actually been made concerning that person’s dismissal, on the basis that the employer no longer required the person’s job to be performed by anyone, because of changes in the operational requirements of the enterprise.

Now, one sees that the force of the enactment here, in specific respect, plainly extends beyond what is called the employer’s enterprise and recognises, in particular, that which is not compulsory but which is extremely common, namely, what I am going to call corporate groups.  So, “redeployment”, for the purposes of investigating the matter of genuine redundancy and an exception to cases where it would otherwise be made out, requires consideration by the tribunal of not only redeployment within the enterprise, the requirements of which have produced the dismissal under 389(1)(a), but also “the enterprise of an associated entity”.

That is, plainly – to use a word that has been used in argument against us in writing – that is a plainly beneficial element of these provisions in favour of workers.  In other words, though the:

employer no longer requires the person’s job to be performed . . . because of changes in the operational requirements of the employer’s enterprise –

for the purposes of the stipulated exception to that state of affairs being genuine redundancy, the exception stipulated in subsection (2), one looks, in the hypothetical, with respect to the reasonableness in all the circumstances of redeployment, not merely to that same business but to something which might be a different business – might actually be engaged in a different industry, for example, but, for example, employing skills of the same kind.

GAGELER CJ:   It does suggest that the reasonableness being referred to cannot be confined to the reasonableness of the employer.

MR WALKER:   There is no question about that.  I do not think any part of my argument, either so far in address or in writing, says that the adjudicator of reasonableness is the employer.

GAGELER CJ:   Sorry, I do not mean to interrupt – but one is not just judging the reasonableness of the potential conduct of the employer if one can look beyond the employer’s enterprise, to associated ‑ ‑ ‑ 

MR WALKER:   That is exactly right.  That is my whole point about (2)(b).  There is the element of looking beyond the enterprise of the employer.  It is not one that has any deployment – but it does not operate in this case.  But it certainly does expressly go beyond that enterprise.

STEWARD J:   Mr Walker, do you say, having regard in particular to section 391(1A)(a), that the reason why there is a reference to an “associated entity” is because the legislative design is saying that if there are no positions available in the employer’s enterprise, you then go and look on to see whether there is an associated entity where there is such a position, which is why 391(1A)(a) is premised upon there being no position available?

MR WALKER:   That is right.

STEWARD J:   Yes.

MR WALKER:   And (1A), in particular, addresses the fact that a separate legal person is about to be the subject of the order of reinstatement.

STEWARD J:   So, you do a search to look if you can redeploy with the actual employer, and if there's nothing available, you go and look at associated entities.

MR WALKER:   Yes.

STEWARD J:   And that is the Corporations Act definition of “associated entity”?

MR WALKER:   It is.  It picks up section 9 definition, yes.  And that – which, of course, has nested within it, related corporate ‑ ‑ ‑

STEWARD J:   Yes.

MR WALKER:   So, obviously it cannot be reasonable to redeploy if you cannot redeploy to an associated entity – nobody disputes that.  Can I come back, however, to the Chief Justice’s question.  I hope I have not misunderstood it.

The reasonableness of redeployment – and I am now just focusing on the employer’s enterprise, because the facts of this case do not make it sensible to spend too much time on associated entities – is a judgment for the tribunal, which is not required by these provisions to defer to what I am going to call the preferences of the employer.  That would be absurd.  It means that if there is a so‑called dispute between employer and employee, as soon as the employer is accepted as honestly saying, I would prefer not to, that is the end of it.  No, of course that is not the case.

What in another era might have been called a prerogative – and I am not otherwise going to use that word – has been displaced to the extent of these provisions.  We accept all of that.  But, in our submission, what is plain from 389, read all together, is that there is a basal significance, as the measuring point for the ultimate conclusion as to reasonableness, in the notion of the employer’s enterprise.

BEECH-JONES J:   What features of that enterprise are, as it were, fixed?

MR WALKER:   All aspects which bear upon whether a person’s job is “no longer required . . . to be performed by anyone”; all aspects that are called “changes in the operational requirements” – which is extremely broad and which, obviously, involves projections as to likely successes or downturns of business – which would affect a need for work of the kind that the dismissed employee in question had been performing.

BEECH-JONES J:   Why would it not just be a reference to the employer’s business, and the things you are talking about get bound up in reasonable in all the circumstances?

MR WALKER:   All I am saying is that the decision as to reasonableness is about the state of affairs focusing on, stemming from, about the employer’s enterprise – not an enterprise different from the employer’s enterprise, not going into another line of business, not redesigning your goods or altering the terms upon which you offer services to the market – in other words, making a better business according to the likes of the tribunal, so as to make room for more workers, for example – in particular, not to posit an expansion of business in times that the employer regarded as contractionary, whereby they cut back their workforce. 

The answer to Justice Beech‑Jones’ question is very much a matter that it is the employer’s enterprise – in all aspects of that which may affect business decisions concerning dismissal or not, because a job is no longer required to be performed by anyone – that is the premise of 389, though that is a very large collection of matters, they include, at its heart, how the business is being conducted at the time the hypothetical inquiry of reasonableness is being made.

GORDON J:   Can I ask two questions about that.  A hypothetical inquiry – when is it made?  Is it made at the time of Fair Work looking at it, or is it looking backwards?

MR WALKER:   It is both.  That is, Fair Work has to look back at the state of affairs at the point of dismissal, and ask, would it have been reasonable for the person to have been redeployed – implicitly, instead of being dismissed?

GORDON J:   Then my second question is, you said, in relation to changing operational requirements at that point in time, it necessarily involves, in the real world – I think you use the word “projections” ‑ ‑ ‑

MR WALKER:   Yes.

GORDON J:   That is, there is an assessment being made by the enterprise about the future management of that enterprise.

MR WALKER:   Yes.

GORDON J:   Are those matters that are taken into account as part of the reasonableness assessment?

MR WALKER:   Yes, but not by free enterprise – not by the ‑ ‑ ‑

GORDON J:   Fair Work?

MR WALKER:   ‑ ‑ ‑ tribunal becoming the predictors of business success.

STEWARD J:   I was going to try and flesh that out a bit, in your argument.  You would accept that, of course, if the evidence was here, that if there had been made a decision or there was likely to be a decision to terminate one of the contractors anyway, in the future, that would be a relevant matter that the tribunal ‑ ‑ ‑

MR WALKER:   Your Honours have seen us say that ‑ ‑ ‑

STEWARD J:   Yes.

MR WALKER:   To call it a concession is going too far.  It does not involve anything against our argument at all.

STEWARD J:   But that would be different.  You would exclude somebody else, such as the tribunal, saying:  my business judgment is that I would have terminated the contractors in the future.

MR WALKER:   Exactly.  That is at the heart of the matter.

STEWARD J:   So, it is all about respecting the business choices made by that particular enterprise in question.

MR WALKER:   Yes.  We go further, coherently understanding that Parliament has not committed the business affairs of going concern enterprises with common law and statutory obligations to a number of people, sometimes called stakeholders, to the tribunal.

EDELMAN J:   Are you going to take us, at some stage, to what those obligations to the contractors were?

MR WALKER:   Your Honour is talking about the contract for the supply of services?

EDELMAN J:   Yes.

MR WALKER:   I was not – I will certainly consider doing this differently, your Honour, but no, I was not going to go beyond this proposition:  that the contracts in question, as one might expect, are not that unicorn perpetual – that is the first thing – second, that they contain the potential for alteration or termination in a number of different ways, most fundamentally, of course, by the parties agreeing to it.

The fact of either the term or supposed terms for renewal – more accurately, one would be looking, surely, for only unilateral rights to force renewal, which are very uncommon in this area – they are, in our submission, irrelevant unless the facts were such that the actual termination – not, according to the tribunal, a termination which it would carry out, were it the employer, but what the employer is intending to do – if there be an actual termination, by whatever means, notice, expiry of term, negotiated agreement of a contract for the provision of services to the enterprise, and that were to produce a state of affairs where there would be an available position for a so‑called “job” to be filled by the employee in question making the unfair dismissal claim, then that is grist to the mill of an inquiry under section 389(2).

That is, we accept that the breadth of the inquiry “in all the circumstances” concerning whether it would have been reasonable for the person to be redeployed within that enterprise – leaving aside associated entities – will obviously include the fact that, though the state of affairs is that, given the contractor’s provision of services, there is no requirement for the person’s job to be performed by anyone at the moment, imminently – and I do mean imminently – there will be a requirement for that job to be performed by someone because it has been determined that the contractor will no longer be providing services for that purpose.

Now, that is a state of affairs which one can hardly believe would subsist up to a contested hearing in the tribunal, but leave that practical, social fact to one side at the moment.  We accept that there is not to be applied blindness about the meaningful future of an enterprise as to its operational requirements and as to what is or is not required to be performed by refusing to consider what is, at the time in question – and that is the time of the dismissal – was contemplated by those in charge of the enterprise as being necessary to be performed for that enterprise.  That, of course, guards against what might be called “dollied up” redundancies.  We are not talking about that.

GAGELER CJ:   Mr Walker, do you go so far as to say that the redeployment contemplated by section 389(2) is a redeployment to another vacant position within the enterprise?

MR WALKER:   Your Honour, that is a formality of language which is not required by the statute.  Can I explain this.  They use the word “job”, which has a range of meanings.  Your Honour uses the very familiar expression “position” – “positions vacant” was the old classifieds heading; “jobs” are sometimes almost synonymous with that.  It does not require anything so formal as the person who, ex hypothesi, no longer requires a job to be performed by anyone.  Of course, we do not argue:  well, if that is true, there is no position, and if there is no position, there is nothing to be redeployed to.  That is not our argument, or anything like it.

Rather, one looks to the nature of the enterprise – and that is the enterprise that exists, not an enterprise constructed willy‑nilly, its board of directors by the tribunal – you look to the state of the enterprise and ask whether, in all the circumstances, which may well include the fact that the enterprise is about to lose the benefit of the contractor providing services, it would have been reasonable for the person to be redeployed.

GAGELER CJ:   But possibly to a new job – a job that did not exist previously.  That is the question that I was getting to.

MR WALKER:   I am sorry, your Honour.  The short answer is no, of course, we do not go that far.

BEECH-JONES J:   Sorry, you do not go so far which way?

MR WALKER:   Of course, we do not go so far as to say there has to be a job, if you like, of the same kind, so, you were a widget maker and there cannot be redeployment considered unless it was to be a widget maker.

GAGELER CJ:   No, no, I am not asking that.  But does there have to be a job?  Can ‑ ‑ ‑

MR WALKER:   There has to be something to be done, yes, because we are talking about a state of affairs where the employer no longer requires the job to be performed by anyone because of changes in the operational requirements of the enterprise.  So, the way I am carrying on business – which, obviously, is future‑oriented – the way I am carrying on business no longer requires that job to be done by anyone.  That is the classic, colloquial understanding of a redundancy.

EDELMAN J:   Mr Walker, if you have an enterprise where, suppose there are two employees, but work – to use a neutral word – work for fifteen, but the other thirteen are filled without any permanent contractual arrangements, but filled on an ad‑hoc basis, just by contractors coming in an out constantly.  One of the two permanent positions becomes vacant or becomes genuinely redundant, but there is space for that person to be redeployed in the other thirteen positions that are used on a casual, ad‑hoc basis.  Would that be a circumstance that would fall within 389(2)?

MR WALKER:   It probably would.  Can I give an example – I hope, picking up on your Honour’s.  Let it be assumed that what used to be called day labour would be a form of casual employment, and was the means by which a business – which perhaps was seasonal, or in such a competitive milieu that business fluctuated considerably – let it be assumed that is how, for years and years, that business has been carried on.  Some house painters are like that, for example – there would be one or two employees, but when there is a bigger job or scaffolding, people are called for immediate tasks.

In such a case, however, the way the operational requirements would be understood and the nature of the employer’s enterprise – all of which would be informing the hypothetical notion of what would have been reasonable instead of dismissal for one of those permanent employees – would involve starting with the proposition that the employer no longer requires that job to be performed by anyone.

And so, you would not worry about whether it was day labour or casual or permanent, because that job, which is described by the work done rather than a title – that job, if it is required to be done by someone, then there would not be any redundancy at all – you would not be flailing around in a reasonableness requirement under subsection (2).  In such a case, you would say, this person is not redundant because the job does require it to be done and you call upon people to do it from time to time.

Once one focuses on job, meaning the work to be done, as opposed to an office of servant, then, in our submission, it is plain that the – if I might call it this – the subterranean issue here, some invidious distinction between casual and permanent and the like, part-time and full-time, it all disappears, because you ask:  is this a case where the dismissal was because of changes in the operational requirements?  That, obviously, is according to the employer – meaning that the employer no longer required the person’s job to be performed by anyone.

So, that is indifferent as to whether it is a permanent, part‑time, full‑time, casual or whatever, it is the job of work.  And so, if the job of work is still needed to be done by somebody, then it is not going to be possible to be a case of genuine redundancy.

EDELMAN J:   In the example I was giving, the job of one of the two permanent employees is no longer required, but there are still jobs of the other, many day labourers that are still required to be done.  I think you accept that just because the widget job does not still need to be performed, provided the employee is capable of performing one of the other jobs, then ‑ ‑ ‑

MR WALKER:   It is not so much agreeing, a matter of forced to accept.  I accept that the, if you like, beneficial exception introduced by 389(2) to what is otherwise, under subsection (1), a matter of the business judgment of those in charge of the enterprise and responsible for its conduct, I accept that that looks beyond this notion of the job no longer necessary, no longer required.

GORDON J:   In effect there are two steps, are there not?

MR WALKER:   Yes.

GORDON J:   The first step is to say:  what is the job that is no required because of the operational requirements?

MR WALKER:   Yes.

GORDON J:   Forget about “position”, because it is an anti‑avoidance mechanism to make sure you do not just say:  yes, the position has been made redundant, therefore – so, one is looking at the nature of the work undertaken.

MR WALKER:   Yes.

GORDON J:    That work is no longer required in the operational requirements of this enterprise.

MR WALKER:   Yes.

GORDON J:   Then, one says:  I now have a person who has a set of skills, can I find a job within the enterprise or the associated entity or the enterprise which they could fill?

MR WALKER:   Yes, yes.  Otherwise, subsection (2) would be the tail that swallows the head, which would be absurd.

BEECH-JONES J:   But does there have to be an existing job?

GORDON J:   Then – sorry, that is the next question.  Does it have to be an existing job?

MR WALKER:   I would say not.  “Job” is not a concept in subsection (2), and we do not argue that.

STEWARD J:   Can I just flesh that out a little bit more?

MR WALKER:   There needs to be something about the employer’s enterprise – and I will come back to that.

STEWARD J:   So, your case, I think, is that, looking at the enterprise as it in fact existed, if there is a demand within that enterprise which can be filled by the person who has just been made redundant, then it may be correct for that person to be given that new job to meet that demand.

MR WALKER:   Yes.  Yes, depending upon ‑ ‑ ‑

STEWARD J:   Now, the harder question – what if the business has made a decision that, for the purposes of meeting that demand of that actual business, that they now want to use independent contractors.  Can they make that choice?  They might offer the redundant person the independent contract.

MR WALKER:   Can I go back to something I have said earlier?

STEWARD J:   Yes.

MR WALKER:   Our argument is not meant to be a charter for an enterprise simply switching from in to out.  That is why the importance is the job:

the person’s job to be performed by anyone –

So, let us take a relatively straightforward one, which actually does lend itself very frequently to contracting out:  “sweepers” – I do not use that word disrespectfully, it is a traditional expression for how many a young person got their start in a factory, with a broom, keeping matters not just neat but also safe.  If one decided, not surprisingly, that sweeping or its modern equivalent would be better done for your business by getting a company whose only interest is in sweeping, rather than also running a woollen mill, then it is clear that the job of sweeping would still be required to be performed by someone.

BEECH-JONES J:   You would not get past (1).

MR WALKER:   That is my point.

BEECH-JONES J:   Yes.

MR WALKER:   So, once focuses on “job” and “enterprise”, in our submission, it is plain that subsection (2) is not a way of returning to the state of affairs covered by (1) and, under (2), the tribunal is saying, but the enterprise could be changed, altered, so that a job that the enterprise does not want to be performed by anyone is to be performed by someone else – nobody, I think argues for that, I hope.

And, we say, it is also true that you cannot posit of the employer’s enterprise, about which the hypothetical reasonableness inquiry in subsection (2) is being conducted, that it is to be something other than, that is, an enterprise being run materially differently from the enterprise as it was at the point of dismissal.

BEECH-JONES J:   There is so much buried in that.

MR WALKER:   Well, intentionally.

BEECH-JONES J:   I do not think intentionally.  But say you had two worksites, and you stopped one worksite, and you have another – at the other worksite you have two 12‑hour shifts, one that has 12 workers and one that has 10.  There is no obvious reason why there is a two‑worker differential, but you do not – you could take two workers from the old worksite and put them on it.  Could the Commission say, well, it is actually reasonable, in the absence of some particular economic justification, to put two workers on the extra shift?

MR WALKER:   No.

BEECH‑JONES J:   And that is why you say you could not do that?

MR WALKER:   No, you cannot do that because this is an enterprise which has decided – and ex hypothesi has actually decided – it is honest – its operational requirements are not to have that location anymore.  Commodity prices would explain it in many an industry.  You are going to mothball that one and you are certainly not going to increase production at the other one.

Now, that should not be left to – that will not be what might be called a quick and informal adjudication for an inexpert tribunal to say, why are you so worried about downturns in commodity prices; I think you mothballed too quickly, I cannot do anything about that, but I certainly think you can, in short, up production at the other site because that will provide an opportunity for someone to be redeployed.  That is putting everything around about.  There is nothing in the statute to suggest that the prudent conduct of a business has been handed over in such an important respect so that the 10‑member shift has become two 12‑member shifts.  Why?  Because there are two people who would like jobs from the mothballed site.  Now, nothing in subsection (2) says that at all.

BEECH-JONES J:   So, you take all the features of the employer’s enterprise, bar the circumstances that have led to one, and say, is it reasonable to redeploy into that enterprise – not just what they do, but how they do it?

MR WALKER:   The enterprise, including the changes in operational requirements.

BEECH-JONES J:   Sure, of course.  The operational requirements in one, the enterprise, but all the other features of it as it exists?

MR WALKER:   You said barring, but what I am saying is ‑ ‑ ‑

BEECH-JONES J:   Including?

MR WALKER:   Accepting that those operational requirements have operated to produce the dismissal, the no‑longer‑required job to be done, you then look at what I will call the resultant state of the enterprise, and you include within it those things which are part of its present state, namely, an understanding that Joe is about to retire – which we have used as an example – somebody is about to take maternity leave, or whatever.

BEECH-JONES J:   It sounds as though you just simply take the organisational chart ‑ ‑ ‑

MR WALKER:   As you find it.

BEECH‑JONES J:   ‑ ‑ ‑ as you find it, and you are just looking for a vacant spot now or within the reasonably immediate future.

MR WALKER:   We would try to avoid “spot” or “job”, because it is clear that under subsection (2), somebody who was formerly a night watchman might – under subsection (2), would be legitimate to say, but is it reasonable to deploy that former night watchman now as a car park attendant.

BEECH-JONES J:   But that is all in the assessment of reasonable.

BEECH-JONES J:   So, it is a different job, different position, but that is absolutely – that is part of the beneficial purpose of this.

GORDON J:   Can I ask two questions in relation to that.  That means you cannot adjust hours on the example that Justice Beech‑Jones gave you?

MR WALKER:   I was not going to the detail of saying you could not adjust hours, but what I am saying is you could not – I was using the example that if you had closed one site because of fears, it is not for the tribunal to say, but you should increase the production at another site, when it is reducing production altogether that is the operational requirement.

GORDON J:   So, if the operational requirement be I have 10 doing 12‑hour shifts, but I can bring over the two from the other site and we could adjust the hours of the current workers on the shift.  That is not open, on your analysis?

MR WALKER:   No, that will be fact‑specific.  In other words ‑ ‑ ‑

GORDON J:   Under the reasonableness rubric?

MR WALKER:   The employer’s enterprise ‑ ‑ ‑

GORDON J:   I should explain why I am asking it, because in response to an earlier question you said it can be redeployed to a job that does not exist at the moment. 

MR WALKER:   Yes.

GORDON J:   So, I am just trying to test the parameters of what it is that does not exist.  So, it is not the creation of new jobs, in your answer to Justice Beech‑Jones.

MR WALKER:   No.  It is something that it would be reasonable to require a person, instead of being dismissed, to be redeployed, and I stress within the employer’s enterprise.  Now, we know that that might often just be blocked off for the reasons that subsection (1) has operated, which is why beneficially there has been an extension to an associated entity, which is a very considerable extension.  It happens not to apply in this case.

But the employer’s enterprise, with all the dynamic nature of an enterprise, which looks to the future and involves people’s reasonably different perceptions of can I afford to add another paid position to produce either the same production, can I really afford to increase my stockpile by over‑production – I mean, those are not matters for the tribunal.  Those are matters for the enterprise to determine.

As a matter of company law, it cannot be sloughed off.  It is totally incoherent to give that to the tribunal, and nothing in this statute suggests by the use of the expression “employer’s enterprise” that it is now an enterprise partly managed by the tribunal.   It is for those reasons that classically paradigm case for (2)(a) – 389(1) having operated – would be that there is work that the enterprise requires to be done – requires to be done, to be performed – which is not being performed.  So, it is the ‑ ‑ ‑

GAGELER CJ:   Mr Walker, can I just tie that to your use of the word “job”.  “Redeployed” I take you to mean, or to say means move to another job.

MR WALKER:   Ending up to do another job.

GAGELER CJ:   Yes.

MR WALKER:   I mean, by definition, not the job from which you have been dismissed.

GAGELER CJ:   I just want to drill down on this word “job”.  You refer to it as work to be done, but is it, as you put it, work to be done by an employee?

MR WALKER:   No, by anyone, it says.  By anyone.

GAGELER CJ:   By anyone.  So, it could be – the employer could face a business choice to have the work done by ‑ ‑ ‑ 

MR WALKER:   I can no longer afford to have a permanent workforce, there is not enough jobs for everyone to be permanent full‑time, I am going to have to go to casuals, or I am going to have to go to a contractor for services, yes.

GAGELER CJ:   Given that that choice is being made in determining whether it is reasonable for the person to be redeployed to a new job, it could be a job that is currently being performed by a contractor.

MR WALKER:   No.

GAGELER CJ:   No, it cannot?

MR WALKER:   No, no, because if it is currently being performed by a contractor, that is how the enterprise is being carried on – operated, to use the statutory language.  Contractors are not lesser beings.  There is no bias here in favour of – I cannot get a specialist glazier when I need them to fix the factory windows because under 389(2), I have to retrain and redeploy my former bookkeeper to be a permanent glazier whose work will depend upon ‑ ‑ ‑ 

EDELMAN J:   Mr Walker, as an absolute proposition, that submission cannot be right, because you might have a situation where there had been a another permanent position, that permanent position had temporarily been replaced by a contractor only while there was a new person being sought for that position.

MR WALKER:   That is why I say, your Honour, it is obviously not a matter of snapshots.  That is totally artificial.  I agree with that completely.  So, that would be a case where, naturally, there is – to use the language of the statute – a job to be performed by someone, and it does not matter whether it is under a contract of service or a contract for services.  There is a job – that is why I call it work, because it says “to be performed”.  Well, whatever it means to perform a job, it means you are doing work, doing that which you are required by whatever expectation, contractual or otherwise, makes it a job from which you can be dismissed.

STEWARD J:   I take it, Mr Walker, that your case, that which is reasonable is informed by the enterprise’s actual policies, processes, procedures and business choices?

MR WALKER:   Yes.  And plans.

STEWARD J:   And plans.

MR WALKER:   And plans.  We do not want more production from that site because we have too much production.

STEWARD J:   Does that mean – let us just say in this case, the company was about to open an alternative mine with similar skills required to the actual mine – it could choose if it had a policy to do so to fill those positions with independent contractors?

MR WALKER:   With anybody, yes.

STEWARD J:   Would it have to offer those contracts first to the people being made redundant?

MR WALKER:   Your Honour means in effect under 389(2)?

STEWARD J:   Something like that, yes.

MR WALKER:   Yes, but no, not as straightforwardly as that, no.

GORDON J:   Is that because there is a commercial decision about whether or not it is casual labour or permanent employment or contractual commercial arrangement.

MR WALKER:   It is absolutely a commercial decision.  Now, this statute does not say, for example, that in determining operational requirements that would indicate that a person’s job is no longer required to be performed by anyone, you many not take into account the possibility of fewer people being required to do the same job if it was done by contractors or casuals, rather than by a permanent full‑time position.

It always, however, comes down to a person’s job.  If the job is still required to be performed by someone, then you will not get to subsection (2); it will not have been a redundancy.  It is not a redundancy to say, I am going to declare redundant your job as part of the permanent workforce because I have this “you beaut” labour hire offer on my desk.  That would not be a case of a person’s job no longer requiring to be performed by anyone.  It would be a case of the person’s job certainly being required to be performed by someone but there being, if you like, a better offer on the table as to how it is to be performed.  That is not a redundancy case.  That is something which, both contractually and industrially, the employer has to take a different responsibility for.

GORDON J:   To take the last sentence of paragraph 2 of your outline:

The section requires the FWC to take the enterprise as it found it, not as the FWC might have reorganised it.

That is subject, as I understand it, to two qualifications – sorry, the meat on the bones is by reference to policies, procedures, plans and business choices ‑ ‑ ‑

MR WALKER:   Yes.

GORDON J:   ‑ ‑ ‑ and then the qualification is a possible factual analysis of the kind of the example put to you by Justice Edelman.

MR WALKER:   Yes.

GORDON J:   Is that the only meat, and the only limit?

MR WALKER:   I think – and what I talked about, the present state of affairs includes that which is imminent.

GORDON J:   Thank you.

MR WALKER:   Which I think ‑ ‑ ‑

GORDON J:   Which I think picks up plans.

MR WALKER:   Yes, but also knowing that something is happening.  Knowing that someone is about to go on maternity leave, knowing that someone is about to retire.

GORDON J:   I see, thank you.

STEWARD J:   And the other qualification might be if the company were acting dishonestly.

MR WALKER:   All of this is subject to the fact that, as you might expect in something called genuine redundancy, that it is all true – there is no mock here.  None of our argument rewards devices – devices are just devices.  Can I make this crystal clear.  Our reading of 389 is one that keeps subsection (2) as a control beneficial for employees otherwise dismissed on a state of affairs which is otherwise described by subsection (1), which is the provision that, as it were, does the real work.

It is in subsection (1) that cases of replacement of what I am going to call permanent full‑time jobs by services contracted to be supplied will, unless there was something very special – not easily to be imagined – that will be a case of that job still requiring to be performed by someone.  The same is true is if you decide you want to get rid of somebody because you think the employment market is such that you could get someone to do that same job for half the price.  It does not matter whether pursuant to a contract of service or a contract for services.  That will not be a redundancy, and you simply have to take the consequences of your contractual promise to pay at the higher rate and deal with it.

What has been put to us concerning redeployment by, as it were, casting a beady eye on the present state of affairs which involves certain jobs being performed by people under a contract for services, rather than of service, that, in our submission, misses the point concerning the reasonableness inquiry in subsection (2).  That is, a reasonableness inquiry about the employer’s enterprise and not about the employer’s enterprise conducted differently in any respect other than the contested redeployment possibility.

EDELMAN J:   That does invite a question about what is really meant by the terms of an employer’s enterprise, where an employer engages independent contractors on an as needed basis.

MR WALKER:   No, your Honour, what you have just described is a description of the enterprise.

EDELMAN J:   But the emphasis that I am putting is on the words “as needed”.  It may be that they may not be needed if there is somebody whose job had become redundant but who could be replacing one of the independent contractors.

MR WALKER:   I think what your Honour is proposing is that if the enterprise was altered so as no longer to have that element of its operations which is called from time to time “as needed” on independent contractors, then, as it were by a priority – which we say cannot be found anywhere in the statute – the dismissed employee is somebody about whom it is possible to say it would be reasonable to redeploy by the enterprise altering by no longer calling to the extent it has been calling on contracted services.

Take a business which is seasonal, such as shearing, and not all the shearers are full‑time employees of what is called the contractor – that is, the person who goes to the grazier to do the work.  The business model is one which is manifestly reasonable by that – let us call them Fleece ‘Em Pty Ltd, which is the employer.  There are three core members of the shearing team that are full‑time employees, and it is decided that the business has turned down and the arthritis has increased, and we are not going to do as many or heavy jobs.  One of those employees, they are no longer required.

Now, the notion that that person is to be redeployed simply by the fact that the usual calling upon local people to do the job as and when required in the vicinity of those people’s homes – which is the business model that has been practised for the last few decades – that, in our submission, finds no footing in the statute at all.  It conceals this idea that a business enterprise which has as its model and its mode of conduct and its planned continued conduct only calling upon certain to be done by means of contract for services rather than a contract of service, it means that there is, supposedly, some legislative intent that the tribunal will decide whether or not that is reasonable.

“Reasonable”, at that point, becomes totally separated from reasonable business judgment which, in our submission, is something which you cannot find in the statute has been decreed now to be shared with the tribunal.  So, it means that there needs to be an exploration of something within the enterprise – and I use “something” to avoid, at the moment, the word “job” – an aspect of the enterprise as it exists, including the obvious potential for response to imminent things, et cetera, and to ask about the reasonableness of a redeployment of the person who has been dismissed.

In our submission, that can only be done if the state of affairs of the enterprise is such as to say here is a job – now, I do use the word of subsection (1) – to which this person can be redeployed; the word “redeploying” conveying that degree of mere equivalence or comparability of the job from which otherwise validly dismissed and the job to which reasonably might be deployed.

It is plainly beneficial in the sense, our friends have argued, but only in the way of extending the potential for redeployment, (a), to the associated entity – that is a different enterprise altogether, perhaps – and (b), to a state of affairs which involves looking at the enterprise.  Now, it would be a contradiction in terms to say that the person’s job is no longer required to be performed because of operational requirements but that some other job that has not been considered necessary for operational requirements ought to be, as it were, invented so as to provide the redeployment opportunity about which reasonableness can then be determined.

We say there is a threshold question.  If there is no such opportunity – call it job, if you like, or work to be done – in the enterprise then one simply does not get to the notion of saying it would or would not be reasonable for that redeployment to occur.  Or, to put it another way, the judicial – or the adjudicative task does not permit, let alone require, reshaping the operational requirements of the employer’s enterprise so as to create what did not, but for that tribunal reshaping, exist, namely, a job of work to be performed in the employer’s enterprise for its operational requirements.

As your Honours have seen, from the way in which the constitutional writ application was framed in the Full Court, it is a question of disputing that these provisions, of which 389 is the heart, authorise a determination which would have the effect of finding not a case of genuine redundancy which proceeds by reshaping in that fashion the employer’s enterprise for the purposes of the hypothetical inquiry.

Your Honours, before leaving 389, you will have of course noted that, in terms of allowing others to have a say about how the business should be run, it is pretty clear from 389(1)(b) how far that goes.  It only goes so far as requiring compliance:

with any obligation in a modern award or enterprise agreement . . . to consult about the redundancy.

It would be odd if Parliament has gone to the trouble to remind one about those requirements if in fact over all of this the tribunal was going to not merely be consulted, but actually second‑guess and be the boss of the decision whether the business’s operational requirements required a certain job of work to be done – that is subsection (1) – or second, subsection (2), whether the operational requirements of the enterprise, which are definitional of the nature of the enterprise, is such as to render redeployment reasonable.

Your Honours, I have several times looked ahead to 396.  We now come to the regime for adjudication of these matters under the statute, and you see that it is mandatory for the Commission first to decide before considering the merits of the application, paragraph (d):

whether the dismissal was a case of genuine redundancy.

And within the notion of the merits of the application will obviously include the central governing proposition for an unfair dismissal, which is 385(b), it was “harsh, unjust or unreasonable”, as understood in light of, though not conclusively, by reference to section 387.  Now, the merits also include, one would have thought also, consideration of sections 390, 391, 392, 393, but for present purposes what matters is that the merits are most obviously focused on “harsh, unjust, or unreasonable”. 

It is for those reasons that when one considers what 396 requires and that 389 plainly contemplates a genuine redundancy, precludes a claim under this part of the Act.  It is, in our submission, in order for the matter to be quick and informal, absolutely not an occasion for a hypothetical reconstruction and then an actual imposition of the consequences of the tribunal saying you – you, the business, the employer – should perceive different operational requirements, should have a different business plan, should be prepared to take more risks in either the labour market or the market for your goods and services.  That, in our submission, is unthinkable that these general words could be construed thus – in the face, for example, in the case of corporations, what the Corporations Act requires concerning responsibility for decision‑making, including business decisions in relation to appetite for risk. 

It is for those reasons, in our submission, coupled with what has fallen out in my answering some of your Honours’ questions, namely, that this is not a statute that expresses any position, a priori or at all, concerning operational requirements being met by casual labour, day labour, labour hire, permanent part‑time, et cetera, et cetera – all the different ways in which jobs can be done for the purposes of a business.

GORDON J:   Can I just ask one question.  I know that you say that in section 391 they are dealing with different issues and do not assist in the construction of 389(2).  Can I ask you, at some point just to address 391(1), which is dealing with reinstatement which must cover both – reinstatement of the existing position because it is false that it was never – the job was still there to be done, but also in the 389 context, I think.  It is talking about appointing a:

person to the position in which the person was employed immediately –

which is the false termination, and the second is:

to another position on terms and conditions –

Does that alter the analysis, or affect the analysis at all, and if not, why not?

MR WALKER:   Section 391 is what happens if it has been found there is an unfair dismissal.  It is one of the possibilities.  In order for it to be an unfair dismissal, it cannot have been a case of genuine redundancy.  So, 391 does not speak to what is a genuine redundancy.  Section 389(2) may produce a finding of not a genuine redundancy because of a redeployment being not merely possible – which is obvious; has to happen – but also reasonable in all the circumstances.  If that is why there is not a case of genuine redundancy, then it may be there is an overlap, but only factually, not as a matter of the stipulations of the statute with 391(1)(b).

GORDON J:   That is why I asked.

MR WALKER:   But let me stress, 391(b) is doing something different.  It is requiring in particular, for example, a position, another position – that is, other than the one from which the person has been unfairly dismissed – on terms and conditions no less favourable.  So, its concern is with a different aspect of remedy – that somebody against whom a wrong has been committed ought not to be suffering on that account. 

The determination in 389(2) does not have any such consideration at all.  It remains unspecified by 389(2) as to whether in a reasonableness inquiry it is forbidden for the employee to point to a job which cannot possibly be paid as much, cannot have as many hours but at least it is something – the Parliament is silent about all of that.  All of it rather indicates that 389 and 391, though they are all plainly related to the social problem of people losing their jobs, they are looking at different aspects of it.  In 389(2), we are not at that point of the inquiry to determine that there has been a wrongdoing.  I am just looking to the component of something which will contribute to but is not sufficient for a finding of wrongdoing.        A dismissal not being a case of genuine redundancy does not conclude the issue.  It still has to be harsh, unjust and unreasonable.  There are other ways in which it might not be lawful.

So, no, 391, is not a cue that the inquiry is one which is focused only positions on the same terms and conditions.  I cannot get that from the language of 389(2).  But, I say, that is because 389(2) is concerned with the employer’s enterprise which must be an enterprise the operational requirements of which no longer require the employee’s job to be performed by anyone.  That is the state of affairs.

Now, what that means is that redeployment plainly is to do a job – to use the language of 389(1) – which is not the same job as has gone, because 389(2) has as its hypothesis that 389(1) has been made out.  So, it will be, if you like, another job, but the word “job” conceals a number of different ways in which it might be understood.  Does it refer, for example, only to the nature of the work, that is, the physical or mental tasks to be performed?  Does it involve where they are to be performed?  Does it involve when?  The answer is most jobs involve all of those aspects and your job description, as it is called in your correspondence in human relations files, will include where you are meant to be, when you are meant to be, what you are meant to do, and to whom you report, et cetera, et cetera.

So, all of those indications that that is absolutely not a matter for the tribunal to impose under the guise of a reasonableness judgment about the business judgment concerning the operational requirements of an enterprise.  Section 391 deals with when it is not only been found not to be a case of genuine redundancy, it is also unlawful, at which point a totally different discourse is appropriate, namely, to ensure that someone harmed by wrongdoing gets a recompense.  That is why 391(1), (2) and (3) are riding together and it is relevant, I suppose, to refer in section 390 to the negative condition that assorts between compensation and reinstatement in subsection (3), you:

must not order the payment of compensation . . . unless:

(a)the FWC is satisfied that reinstatement . . . is inappropriate –

So, that shows reinstatement has really not got any conceptual similarity to redeployment.  By definition, once you get to 390, 391 and 392, you have passed over the question of 389.

GORDON J:   Is not 391(1)(b) redeployment, though?

BEECH‑JONES J:   It is a form of redeployment.

GORDON J:   Form is the better way of putting it.

MR WALKER:   Yes, I think that is correct, but, if I may say so, it is not one that you will find involves this notion of reasonableness:

in all the circumstances for the person to be redeployed within:

(a)     the employer’s enterprise –

which are the governing words of 389(2).  In 391, the remedy is simply in the alternative, to be put back into position from which you were wrongly dismissed – that is the first one, 391(1)(a).  Under 391(1)(b), whatever:

terms and conditions no less favourable –

they must include some sufficient similarity of the work to be done in order for it to be not less favourable.

BEECH‑JONES J:   Would you contend that (1)(b) refers appointing the person to another existing position?

MR WALKER:   The word “position” certainly suggests that.

GORDON J:   Is there authority on the interpretation of 391(1)(b), on the context of whether it extends to sort of creation of new jobs or existing position – sorry, creation of a new position or existing positions or ‑ ‑ ‑ 

Apropos that, Justice Beech‑Jones asked my friend about – observed that, with respect to contractors’ staff and vis‑à‑vis our client, there was no person with an entitlement to work as there is, obviously, for an employee.  And our answer is, of course, that is true but irrelevant.  What matters is we have a right and a liberty and a scope for our exercise of business judgment that we only want a certain number of people – and, by the way, we choose who they are – who have that entitlement to work.

The idea was floated of replacing permanent staff with at call staff.  That is not the facts of this case.  If and when such a case arises, there would be obviously subsection (1) inquiries, not merely subsection (2) inquiries.  That is an entirely different matter which it would be inappropriate for this Court to venture into, given there are no facts which suggest that is what has happened, and obviously both parts of the blended workforce suffered the diminution of opportunity upon the downturn.

Your Honours, it is suggested to me – I am indebted to my friend – that it may be that in the second time around in the Commission – core appeal book 71, 72, the findings – when the commissioner set out to do what the Full Bench said he should do after the paragraph [67] protest, in the course of going through that catalogue, you will have noticed under both items (a) and (b) some reference to the Nexus and Menster contracts.

I should interpolate, there is absolutely no reason, nor any finding, that the proximity or otherwise of – I will call end points under those contracts – should be regarded as meaning the end of the relationship.  And the notion that somebody should lose their liberty to make a new or replacement contract with a highly satisfactory contractor because of a redeployment determination is, in our submission, just as serious an interference with business judgment as everything else we have argued.

With respect to business strategy, on page 72 of the book in now subparagraph [68](c) of those reasons the second time around in the Commission, you will see a reference to “business strategy” which gels with what we have been talking about with the blended workforce.  But I do

not think there are findings, expressed in anything like precise numerical terms, concerning the blending and, in any event, that would be something which would be highly sensitive to circumstances as they change and perceptions as they alter.

Can I give a reference in further response to something Justice Steward asked concerning the identity or the nature of the decisions which had been the subject of the criticism by the first Full Bench.  You will find that first Full Bench’s reference to that in the core appeal book at pages 43 and 44, with a citation at the foot of page 46.  The nature of the criticism there makes it clear that they did not regard that decision as possible, that is, rationally or fairly bearing upon the questions before the Commissioner.

May it please the Court.

GAGELER CJ:   Thank you, Mr Walker.  The Court will consider its decision in this matter and will adjourn until 10.00 am tomorrow.

AT 3.26 PM THE MATTER WAS ADJOURNED