C2004/6573, Transcript of Proceedings [2004] AIRCTrans 4472 (18 November 2004)

AUSCRIPT AUSTRALASIA PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N3549

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BACON

C2004/6573

APPLICATION TO STOP OR PREVENT INDUSTRIAL ACTION

Application under Section 127(2) by Thiess Pty Ltd
for orders in relation to a strike in relation to
the termination of two employees during their
probationary period

BRISBANE

2.20 PM, MONDAY, 8 NOVEMBER 2004

PN1

MR C. COPELAND: From McCullough Robertson for the applicant, seeking leave to appear, Commissioner. With me, MR CUTHBERTSON from the applicant.

PN2

THE COMMISSIONER: Thank you, Mr Copeland.

PN3

MR T. CONROY: Good afternoon, Commissioner, welcome back.

PN4

THE COMMISSIONER: Good to see you again, Mr Conroy.

PN5

MR CONROY: It is good to see you during the week, Commissioner. I am appearing on behalf of the CFMEU, with MS HELEN PEACE, and you recognise the gentleman behind me. I am not sure if he is appearing or not. Commissioner, I do object to the appearance of Mr Copeland.

PN6

THE COMMISSIONER: Very well. Well, Mr Copeland, why should you be granted leave?

PN7

MR COPELAND: Commissioner, it may assist the Commission if there are any jurisdictional points on the 127 application. If I could appear for my client. That is the sole ground I seek leave on.

PN8

THE COMMISSIONER: Mr Conroy?

PN9

MR CONROY: Commissioner, I will just turn to the relevant section of the Act. I think it is Section 42(3), and the first part - or 42(3)(b) contemplates that counsel may be given, or allowed to appear if there are special circumstances that make it desirable, and I would submit, Commissioner, that those special circumstances don't exist, and certainly haven't been made out by Mr Copeland.

PN10

And secondly, with respect to Section 43 - sorry, 42(3)(c), it is contemplated that counsel may be able to appear if the party can only be adequately represented by counsel, solicitor, or agent. And Commissioner, Mr Cuthbertson is here, who we are all aware is an experience advocate, and accordingly it is my submission that that piece of statute isn't enlivened to allow Mr Copeland to appear today. May it please the Commission.

PN11

THE COMMISSIONER: Very well, thank you. Mr Copeland, anything in reply?

PN12

MR COPELAND: Commissioner, it is a serious matter when the workforce of a mine walks out. The special circumstances, I would submit, are that the consequences of this application are very significant to my client - - -

PN13

THE COMMISSIONER: Well, hang on, Mr Copeland, you didn't advance any special circumstances in your grounds. There - - -

PN14

MR COPELAND: Well, I wasn't aware of the objection - the ground of the objection, Commissioner.

PN15

THE COMMISSIONER: But you advanced one ground, and the ground is that there are - in the event that there is a jurisdictional issue that you would be able to assist the Commission. That is the sole ground on which the application for leave is based.

PN16

MR COPELAND: Yes, Commissioner. Well, the special circumstances are the exercise of your discretion. The jurisdictional point is your discretion, and the special circumstances - special circumstances go to the exercise of your discretion, I would submit, in that the consequences - it is a jurisdictional point, your discretion.

PN17

MR CONROY: Commissioner - - -

PN18

THE COMMISSIONER: Yes, Mr Conroy?

PN19

MR CONROY: I am sorry to interrupt, but I guess I want to lay all the cards on the table so that we don't deal with this issue and then potentially I raise something that may alter the Commission's position on this matter. But I intended to raise an argument with respect to Section 111(1)(g)(iii), that it is not in the public interest for the Commission to hear this matter. So I just wanted to raise that upfront now.

PN20

THE COMMISSIONER: Very well, thank you. Perhaps we can come back to you, Mr Copeland.

PN21

MR COPELAND: Commissioner, in light of what Mr Conroy has just said, I would submit that my client unrepresented may not be in a position on his feet to respond adequately to the objections of the respondent in having the matter struck out in the public interest. And it may assist the Commission that, in my submission, this was a fairly simple matter on its face, and rather than have my client put to the trouble of refreshing themselves and getting into it, which we are not - they have briefed solicitors to prepare the matter, there is no significant downside or prejudice on the other side if I was to argue the applicant's case.

PN22

THE COMMISSIONER: Yes, but none of those are the test you need meet. The test you need meet is whether there is consent; well, there is obviously not that. Whether or not that the subject matter of the proceedings that having regard to the subject matter of the proceedings there are special circumstances - you say it was a simple matter - and - - -

PN23

MR COPELAND: Factually, Commissioner, it is a simple matter, yes.

PN24

THE COMMISSIONER: I am going to grant leave, and I am going to do it only on the ground that it is desirable that you be so represented, and I, in reaching that conclusion, I want to thank Mr Conroy for advising me that he intended to raise the Section 111(1)(g)(iii) application, which, to the best of my knowledge, certainly the times I have been learning this Section 127 matters hasn't been a matter that has been raised before, and that is the basis on which I am going to grant leave, because of that issue, because there are jurisdictional issues that obviously attach to that.

PN25

But again, having said that, I have to acknowledge the integrity of Mr Conroy in at least advising the Commission of that fact. So leave is granted, Mr Copeland.

PN26

MR COPELAND: Thank you, Commissioner. Is it proper for me to start, or should the respondent raise their application to have the matter struck out first?

PN27

THE COMMISSIONER: I would - obviously, the 111(1)(g)(iii) application has to be dealt with as a preliminary matter, but nevertheless - sorry, I withdraw that - it doesn't necessary have to be dealt with as a preliminary matter, but obviously if we are going to hear a Section 111(1)(g)(iii) point the facts of the case have to be known to decide whether or not it is in the public interest to not hear the matter.

PN28

MR COPELAND: Sure, I understand.

PN29

THE COMMISSIONER: Do you have a preference, Mr Conroy? Do you want to run your - - -

PN30

MR CONROY: Commissioner, I would be happy for Mr Copeland to raise any preliminary points and deal with his evidence if he wishes to do so before I raise my argument with respect to Section 111. Commissioner, I am wondering if there may some value in this matter being adjourned briefly, and the parties having a discussion, with your assistance. It may curtail the need for any further hearing at all this afternoon.

PN31

THE COMMISSIONER: Any objection to that course, Mr Copeland?

PN32

MR COPELAND: No, Commissioner.

PN33

THE COMMISSIONER: Very well, well, I will adjourn the Commission for the purpose described by Mr Conroy.

NO FURTHER PROCEEDINGS RECORDED [2.25pm]