C2002/4925, Transcript of Proceedings [2002] AIRCTrans 4280 (30 October 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER ROBERTS

C2002/4925

CONSTRUCTION, FORESTRY, MINING AND
ENERGY UNION

and

MOUNT THORLEY OPERATIONS LIMITED

Notification pursuant to section 99 of the Act
of an industrial dispute re alleged failure of
the company to comply with its Code of Business
and Employee conduct etcetera

SYDNEY

11.10 AM, MONDAY, 14 OCTOBER 2002

PN1

THE COMMISSIONER: Appearances, please.

PN2

MR K. ENDACOTT: If the Commission pleases, I appear for the Construction, Forestry, Mining and Energy Union, Mining and Energy Division, and with me at the bar table is MR P. JORDAN, who is a Vice President of that division of that union and further to Mr Jordan's right is a MR D. POWER and MR S. McBRIDE, who are lodge secretaries of the Mt Thorley Operations CFMEU lodge, if the Commission pleases.

PN3

MR A. LONGLAND: May it please the Commission, I seek leave to appear on behalf of the respondent to the application, Mt Thorley Operations Pty Limited, I'm a solicitor with the firm Messrs Freehills.

PN4

THE COMMISSIONER: Do you oppose Mr Longland's appearance.

PN5

MR ENDACOTT: I do oppose leave on the basis, Commissioner, that the legislator has not seen it fit to give counsel the right of automatic representation before the Commission. In fact, the legislators have set a high hurdle we would submit for counsel to appear in these proceedings and you would be familiar with the requirements of section 42 of the Act which is representation of parties before this Commission. It sets a number of tests that need to be met, we would submit, before leave is given.

PN6

Specifically I go to subsection (3) of section 42 that reads:

PN7

A party (including an employing authority) may be represented by counsel, solicitor or agent.

PN8

Subsection (a) of (3) of 42 says:

PN9

By leave of the Commission with the consent of all parties.

PN10

which is not the case. (b) reads:

PN11

By leave of the Commission, granted on application made by a party, if the Commission is satisfied that, having ...(reads)... that make it desirable that the parties may be so represented.

PN12

Certainly, I don't need to draw this Commission to the emphasis of that subsection, that is (b) specifically but what can be seen from reading on its face is it uses the terminology such as "Commission is satisfied". Secondly, "there are special circumstances that make it desirable". Certainly, that's in pretty pro-active and we would say strong terms and it would mean that the subject matter should be such, should be special that would warrant the counsel appearing. Now, this matter is a - - -

PN13

THE COMMISSIONER: (b) goes on to be also qualified by (c), doesn't it?

PN14

MR ENDACOTT: Yes, and I'll address (c) in a moment. I'm only dealing with (b) at this stage, Commissioner. Certainly, we notified a general dispute under section 99 of the act. We will be asking for the Commission's assistance in conciliation in an attempt to resolve this matter. Certainly, we won't be or it's not our intention to ask for any orders or to have any legal argument or ask for the Commission to arbitrate the issue. We do have a dispute and under section 99, we are seeking the Commission's assistance with conciliation to resolve the matter and certainly there's no legal points or complex legal arguments in that active conciliation, we would submit, that would warrant the leave, warrant leave being given for legal counsel.

PN15

Then I go on to part (c), Commissioner, which contextualises the early part of the section which says by leave of the Commission, grant an application made by a party, if the Commission is satisfied that the party can only be adequately represented by counsel, solicitor or agent. Well, we firstly say the subject matter isn't such that requires counsel, solicitor or agent but further, we say that the company, Coal and Allied Operations which is part of the Rio Tinto Group is a major international mining company. It has significant internal human resources and industrial relations expertise, significant internal and I stress that point, Commissioner.

PN16

I know Mr Thompson who holds a senior industrial relations or human resources position in the company is an advocate, is an experienced industrial relations officer and an experienced advocate having been aware of not only his involvement with Coal and Allied but also his involvement in senior positions with other companies. I think he worked for Oceanic which is another major mining company and regularly performed advocacy and handled with a high degree of ability for the issues that would fall within the normal gambit of industrial relations, including appearing before these proceedings.

PN17

So we would say there are no grounds under (c) that would submit that the company couldn't be represented and in saying that, Mr Thompson also detailed cases, cross-examination, presenting submissions before this Commission, in a similar fashion as I do and he would be quite capable, more than capable of representing the company in a conciliation and in fact would be more than capable should it go to arbitration which certainly we're not expecting for it to occur. If the Commission pleases.

PN18

THE COMMISSIONER: Mr Longland?

PN19

MR LONGLAND: Just three brief points, Commissioner. We're relieved to learn for the first time this morning that no orders will be sought by our friends. There is no dispute here under section 99. That might become an issue at some point later in the proceedings that I could assist with. The second point is, we're very happy to proceed in the manner that my friend has indicated in some conciliation off the record, both one presumes when all parties are present and separately and it's for that purpose that Mr Thompson and Mr Haley, the relevant Operations Manager, they would participate. I certainly won't be taking the agenda from them.

PN20

The third point, Commissioner, is that it's not for Mr Endacott to determine whether my client can be otherwise adequately represented. He's expressed some unspecified views about that. The client has chosen to engage me for the purpose of appearing for them today because it's their view that they can't otherwise be adequately represented. We don't make admissions as to the allegations made about Mr Thompson's experience. He is experienced generally around this Commission in the long term but certainly in recent times hasn't conducted matters himself.

PN21

My appearance this morning will simply, I submit, assist in facilitating getting you across the issues which are behind this dispute. They're not insignificant in their detail and facilitating the participation of Mr Haley and Mr Thompson as required. I don't seek leave for any purpose other than undertaking those matters today. It's not an application -

PN22

THE COMMISSIONER: You don't seek leave beyond conciliation?

PN23

MR LONGLAND: Absolutely, Commissioner. If the matter goes beyond that, I'll revisit the point.

PN24

THE COMMISSIONER: I agree with you to that extent. I'll reserve a decision on granting leave to Mr Longland at this time pending conciliation and we can revisit it if necessary. I believe Mr Longland's presence in conciliation may be helpful to his client in terms of receiving ad hoc legal advice. We'll now adjourn into conference.

PN25

MR LONGLAND: Thank you, Commissioner.

NO FURTHER PROCEEDINGS RECORDED [11.19am]