C2004/2916, Transcript of Proceedings [2004] AIRCTrans 1623 (28 April 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 10751

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DRAKE

C2004/2916

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION

and

CUMNOCK COLLIERY

Notification pursuant to section 99 of the Act
of a dispute re alleged failure of the company
to pay employees the correct annual leave payments
on termination

SYDNEY

10.47 AM, TUESDAY, 20 APRIL 2004

PN1

MR K. ENDACOTT: If it pleases your Honour, I appear for the Construction, Forestry, Mining and Energy Union, Mining and Energy Division and with me is MR G KELLY, a Vice President of that Division of that Union.

PN2

MR J. WHALE: May it please The Commission, I will be seeking leave to appear for Cumnock Colliery. I will have MR G LEWIS, General Manager of Cumnock Colliery with me.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Endacott?

PN4

MR ENDACOTT: Thank you. Your Honour, I will just give brief description of the matter that surrounds this notification. Essentially I set out in the section 99 submit application, it concerns a failure of the company to pay employees the correct annual leave payment on termination of employment, essentially on retrenchment. In essence, what happened was the company retrenched a number of employees and employees disputed the manner in which their retrenchment pay, with respect to annual leave, was calculated. There was a number of discussions between the parties and we would seek your assistance today by conciliation in an attempt to resolve it. I have prepared a document that sets out the correspondence and relevant sections of the agreement.

PN5

THE SENIOR DEPUTY PRESIDENT: You intend this matter to go into conciliation?

PN6

MR ENDACOTT: Yes, I do. We say that this is an extremely simple interpretation argument.

PN7

THE SENIOR DEPUTY PRESIDENT: Well do not hand it to me, you can give it to me in conciliation.

PN8

MR ENDACOTT: We would be seeking today to have the matter resolved by conciliation. It is my understanding, which is yet to be a final position with respect to the disputes resolution clause, is The Commission is only empowered to conciliate. Certainly, if it does not resolve by conciliation it would be our intention just to lodge a small claim in the court but we would not want to get - - -

PN9

THE SENIOR DEPUTY PRESIDENT: In the Chief Industrial Magistrates Court?

PN10

MR ENDACOTT: Yes. We say certainly we would seek to resolve the matter by conciliation and even to the extent the parties just agreeing perhaps that your Honour just give an interpretation that we would abide by.

PN11

THE SENIOR DEPUTY PRESIDENT: All right, not at the present objecting to Mr Whale's appearance?

PN12

MR ENDACOTT: Well yes, there is. With respect to his attendance, one, we say this is simply not a matter that requires an agent in the form of - it is not special circumstances as would be meant. With respect to the company required to be represented by an agent, we say the circumstances are simple, it is not one of which we are seeking any sort of determination today, unless the other side agrees, it is conciliation.

PN13

THE SENIOR DEPUTY PRESIDENT: Mr Whale might be of assistance to you in such a matter Mr Endacott. Why don't we just delay such a matter, it is not going to proceed to arbitration before me. What is Mr Whale going to do in conciliation that could be objectionable?

PN14

MR ENDACOTT: Well I remove my objection for leave to appear your Honour.

OFF THE RECORD [10.53am]

RESUMED [2.12pm]

PN15

THE SENIOR DEPUTY PRESIDENT: We are dealing with the matter of C2004/2916, the CFMEU and Cumnock Colliery. Yes, Mr Endacott and Mr Whale?

PN16

MR ENDACOTT: Yes thank you, your Honour. There has been some discussion between the parties after the conciliation, that was conducted off the record in front of yourself. Basically, the parties have agreed that they will meet on Friday, which is 23 April, at the mine to discuss possible resolution of the matter and that, that meeting is to take place between Mr Lewis and Mr Kelly. With respect to these proceedings, I think it was indicated that they just be stood over generally and we notify this Commission if their assistance is further required. Certainly, if it is resolved we will notify you in writing that the matter has resolved. If not, there is a question of whether it comes back before The Commission on one further occasion or it is just determined in front of the Chief Industrial Magistrates Court. We certainly thank your Honour for her assistance today in an attempt to bring the parties together by conciliation.

PN17

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Whale, that is in accordance with your understanding?

PN18

MR WHALE: Yes, your Honour, it is. The company adopts the submission of Mr Endacott in this matter.

PN19

THE SENIOR DEPUTY PRESIDENT: Thank you. That matter is stood over generally on the terms based on the transcript by Mr Endacott.

ADJOURNED INDEFINITELY [2.14pm]