C2003/2517, Transcript of Proceedings [2004] AIRCTrans 284 (20 January 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 8666

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT MARSH

C2003/2517

APPEAL UNDER SECTION 45 OF THE ACT
BY CARGILL AUSTRALIA LIMITED TRADING AS
CARGILL BEEF AUSTRALIA AGAINST THE
DECISION AND ORDER OF SENIOR DEPUTY
PRESIDENT DRAKE AT SYDNEY ON
10 DECEMBER 2003 IN U2002/5216
RE TERMINATION OF EMPLOYMENT

SYDNEY

2.17 PM, WEDNESDAY, 7 JANUARY 2004

Continued from 6.1.04

PN8

THE SENIOR DEPUTY PRESIDENT: Good afternoon. This matter was part heard yesterday. Additional appearances please?

PN9

MS C. PASUPATHY: If the Commission pleases, I appear for the appellant Cargill Australia Limited.

PN10

MR M. BARNES: I appear for the respondent.

PN11

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, Mr Barnes?

PN12

MR BARNES: Thank you, your Honour. In relation to the proceedings the parties have had some negotiations and some draft short minutes of order have been prepared which hopefully, subject to your Honour's view, will forestall any need for any hearing at all in relation to this stay. May I hand up some short minutes of order which have been executed by my friend and myself and dated 7 January? We trust they address all the issues.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes. Did you wish to speak to this?

PN14

MR BARNES: No, thank you, your Honour. With respect we're happy to deal with any inquiry you may have if there's any concern but we're content that all the relevant issues are addressed. The only thing that I have noticed - - -

PN15

THE SENIOR DEPUTY PRESIDENT: Well, number 1 says the orders of the Commission, the subject appeal, are stayed pending further order. Well, that would require an order from the Commission.

PN16

MR BARNES: Yes, I was about to say the only other - - -

PN17

THE SENIOR DEPUTY PRESIDENT: Sorry, you continue.

PN18

MR BARNES: Yes, the only other thing I was about to say was that there might be scope for saying that there might be liberty to apply but the fact is that the scheme of these short minutes of order provide for the hearing of the appeal on 23 February 2004 and depending on how the appeal resolves the short minutes of order will fall into place.

PN19

THE SENIOR DEPUTY PRESIDENT: My question to you was that the only way in which an enforceable order can be made through the Workplace Relations Act in accordance with (1) is that I issue an order staying the order. Is that what is intended?

PN20

MR BARNES: Yes, that's what we do seek.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes, so this would go on the file as a settlement with respect to how the matter should be dealt with.

PN22

MR BARNES: Yes.

PN23

THE SENIOR DEPUTY PRESIDENT: Arising out of that would require an order of the Commission staying the order of Senior Deputy President Drake.

PN24

MR BARNES: Yes, and that the balance of the short minutes of order are made by way of order of the Commission pursuant to its jurisdiction under section 45(4) which provides for the terms - - -

PN25

THE SENIOR DEPUTY PRESIDENT: I see, so you want an order in the terms of all of the aspects of the - that's why it's called short minutes of order. We don't normally deal with it that way, but that's fine.

PN26

MR BARNES: Yes, well, in that case I'll blame Mr Hatcher for that.

PN27

THE SENIOR DEPUTY PRESIDENT: No, we learn all the time in this jurisdiction. So what's required is an order to be issued in the terms of 1 to 8.

PN28

MR BARNES: If your Honour pleases.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes, I am able to issue a stay order on any conditions that I deem to be appropriate, so therefore that would be appropriate to do that. Do you agree with that, Ms Pasupathy?

PN30

MS PASUPATHY: Yes, we do. We'd just like to add on the record as well that on behalf of the appellant we'd like to apologise for any inconvenience caused to the Commission and obviously Mr Barnes and the other side.

PN31

THE SENIOR DEPUTY PRESIDENT: Yes, I did convey that yesterday on the record and off the record and thank you for your assistance yesterday. I know you were in a difficult position. That's very good that the parties have been able to negotiate an outcome and an order will be issued forthwith in the terms set out in the short minutes of order which I should mark. No, I won't mark it. There's no need to mark that. That will be issued later today. Thank you very much for your attendance and your cooperation in this matter. The Commission stands adjourned.

ADJOURNED INDEFINITELY [2.22pm]