C2002/1602, Transcript of Proceedings [2002] AIRCTrans 1241 (11 April 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER ROBERTS

C2002/1602

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION

and

LIDDELL COAL PREPARATION PLANT
PTY LIMITED

Notification pursuant to section 99 of the
Act of a dispute re employment status of
casual labour etcetera

SYDNEY

9.40 AM, WEDNESDAY, 27 MARCH 2002

PN1

THE COMMISSIONER: Good morning. I will take appearances, please.

PN2

MR K. ENDACOTT: If it pleases the Commission, I appear for the Construction, Forestry, Mining and Energy Union, Mining and Energy Division, and with me at the bar table are MR K. MORRIS, secretary of the CFMEU lodge for the preparation plant, MR D. MAIN, president of the lodge and in the gallery are MR T. DEAKIN. treasurer of the lodge and MR R. DEAKIN, the person the application surrounds.

PN3

MR T. DAVIES: If the Commission pleases, I seek leave to appear for Liddell Coal Preparation Plant Pty Limited and with me are MR T. WELLS and MR G. FEWINGS.

PN4

MR ENDACOTT: I oppose leave, Commissioner.

PN5

THE COMMISSIONER: You do. Do you wish to address me, Mr Endacott?

PN6

MR ENDACOTT: Yes, Commissioner, I oppose leave on the basis that the right for a party to be legally represented before this Commission is not automatic, that the legislators in the form of the Federal Government as approved by the Senate has set a test that is to be applied for leave to be given for representation. Should it have been the intention of the legislators that representation would be an automatic right no doubt they would not have included the relevant section of the Workplace Relations Act that restricts that representation.

PN7

The section I refer to, Commissioner, is section 42, representations before the parties. Section 42 of the Act sets out the tests required predominantly at point 3:

PN8

A party, including an employer authority, may be represented by a counsellor, solicitor or agent (a) by leave of the Commission and with the consent of all parties -

PN9

certainly there is not the consent of all parties:

PN10

(b) by leave of the Commission granted on application made by a party if the Commission is satisfied that having regard to the subject matter of the proceedings there are special circumstances that make it desirable that a party may be so represented.

PN11

Now, I accept that, Commissioner, because it says "special circumstances" and I would say that special circumstances as can be reasonably read from the term mean that something special, unusual, out of the ordinary, an issue that would not normally come before this Commission arises. We would submit that there is nothing in this application that would meet the test of a special circumstance. Certainly we would impress upon this Commission that in interpreting section 42, consideration should be given to that wording and the narrow scope envisaged by that wording should be applied to this Commission. We would also make the point, Commissioner, that the CFMEU is not legally represented in these proceedings, they are represented by a lay advocate and we would press the point that a lay advocate appearing before this Commission when confronted by an employer with large resources using legal counsel would be left in a position of disadvantage. Further, Commissioner, point (c) says:

PN12

(c) by leave of the Commission granted on application made by a party if the Commission is satisfied that the party can only be represented by a counsellor, solicitor or agent.

PN13

My understand of the nature of this dispute, which is one of which we intend to seek a resolution by conciliation, does not contain grounds of such a nature that the company could not be adequately represented by someone other than counsel and certainly the CFMEU appears not represented by counsel. We say that supports the conclusion that the company should also be able to be represented by someone other than counsel. If the Commission pleases.

PN14

THE COMMISSIONER: Thank you. Are you appearing as counsel, Mr Davies, or as a solicitor?

PN15

MR DAVIES: That is the first point I wish to make, Commissioner, I don't appear as counsel, I am a solicitor, I appear in that capacity. If I might respond to those points.

PN16

THE COMMISSIONER: You may.

PN17

MR DAVIES: I would submit that it would be appropriate for the Commission to consent to representation both under section 42(3)(b) and section 42(3)(c), and I say that for a number of reasons. So far as section 42(3)(b) is concerned, I should indicate that the respondent has not been given any prior warning or indication that there would not be consent to representation. The respondent has been represented on past occasions before the Commission by consent by Mr John Whale, who is today in Brisbane. The persons with whom I appear do not have experience in proceedings before the Commission, unlike the union, indeed for Mr Wells, the gentlemen on my left, this is the first time in many, many years that he has been before the Commission.

PN18

The subject matter of the proceedings means that there are special circumstances and that the respondent can only be represented by a representative in the form of a counsellor, solicitor or agent and I say that by the nature of the proceedings themselves. There are jurisdictional issues in relation to this matter, Commissioner, which may need to be taken up. Those jurisdictional issues include whether or not the particular dispute relates to matters pertaining to the employer/employee relationship. In this case we are dealing with the question of recruitment of an individual and the individual with a complaint is not an employee of the respondent.

PN19

Commissioner, that is the first point, the second point is as to whether or not the dispute is an interstate industrial dispute falling within the ambit of any pre-existing industrial dispute or in of itself. There are questions about the jurisdiction of the Commission under section 99 as opposed to section 170LW. There have been raised before the Commission in the dispute notification two matters which it is said the dispute relates to, first of all the employment status of casual labour under the site certified agreement, that is a matter which we wish to make submissions about, the process of the dispute settlement procedure under the enterprise agreement and that matter can probably be dealt with before the Commission prior to that procedure having been followed.

PN20

THE COMMISSIONER: I take it in brief that there are legal matters which require - - -

PN21

MR DAVIES: There are legal matters and to the extent that I need to make any further submissions I will, but otherwise we would say on that basis it is appropriate for there to be representation. I should say at the same time if possible we are not hear to seek to stymie the proceedings. If there are ways that the parties can resolve matters between them, that is well and good, but we do say representation is appropriate.

PN22

MR ENDACOTT: I just wish to respond briefly, Commissioner. Firstly, and I say this for the purposes of Mr Davies who appears for the company, I have said this to the Commission, if the company turns up and wishes to be legally represented and the party that seeks leave never approaches me before the hearing and gives me a reason why, I will oppose it on every occasion.

PN23

I say this as a matter of course to companies that are legally represented, I haven't said that before to Mr Davies so I don't make this criticism of him, but they never do it, ever, and as to the issue of whether we have consented in the past with respect to leave for the company to be represented, I only say that is not relevant to these proceedings. I can understand all the jurisdictional arguments my friend says he may wish to be run but I think I have made it clear in my submissions that at this stage the only process we are seeking is conciliation.

PN24

THE COMMISSIONER: That is what section 100 of the Act requires of me initially.

PN25

MR ENDACOTT: Yes, so at this stage there is no jurisdictional issue and in any event the disputes resolution procedure of the certified agreement in essence says that where there is a dispute the matter should be referred to the appropriate industrial authority. It doesn't say what the authority is meant to do certainly but it says it is to be referred. In one of the cases that deals with it, it says, well, the Commission has got to do more than just note that a dispute exists, that even means conciliation or arbitration, but I don't press that.

PN26

All I say is that the disputes resolution procedure requires that it comes to the Commission. Certainly that would envisage conciliation in the first stages and certainly we would press the point that special circumstances don't exist. If the Commission pleases.

PN27

THE COMMISSIONER: I would say now that this matter is a little bit more line ball that it has been in the past in my view. I will grant Mr Davies the right to appear. I think you sell yourself short, Mr Endacott, in terms of your abilities re Mr Davies. There are matters today which may raise legal questions. I don't see a particular role for solicitors in conciliation proceedings but I think the employer respondent would be disadvantaged if Mr Davies was not present during such discussions. We will now adjourn into conference.

NO FURTHER PROCEEDINGS RECORDED [9.45am]