C2004/6468, Transcript of Proceedings [2004] AIRCTrans 4659 (2 December 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

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 15229
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER ROBERTS

C2004/6468

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

and

UNITED COLLIERIES PTY LIMITED

Notification pursuant to section 99 of the Act
of an industrial dispute re disciplinary procedures

SYDNEY

10.12 AM, TUESDAY, 23 NOVEMBER 2004

Continued from 10.11.04

PN196

THE COMMISSIONER: Good morning, I think there's a change to appearance on the employer's side, isn't there?

PN197

MR G. FREDERICKS: Yes, Commissioner. Solicitor, I seek leave to appear on behalf of United Collieries.

PN198

THE COMMISSIONER: I take it that leave was granted on the last time to Mr Turner, I think it was.

PN199

MR K. ENDACOTT: No, no application for leave was made on the last occasion, Commissioner, Mr Wallace did the submissions.

PN200

THE COMMISSIONER: Did he indeed? He appeared with Mr Turner.

PN201

MR ENDACOTT: Yes.

PN202

THE COMMISSIONER: All right, fair enough. Do you object to Mr Fredericks' application for leave?

PN203

MR ENDACOTT: Yes, I do object.

PN204

THE COMMISSIONER: You do object. Why should you appear today Mr Fredericks?

PN205

MR FREDERICKS: Thank you Commissioner.

PN206

THE COMMISSIONER: You haven't appeared before me so I'll tell you I take it the onus is on you to show me why you should appear.

PN207

MR FREDERICKS: I understand that, and that's what section 42 of the Act requires as well. This is a situation we are now faced with dealing with some jurisdictional issues in this particular dispute, particularly as to whether the Commission has a jurisdiction to proceed any further with this matter. We will be required to visit a number of issues. One is whether the Commission should and is able to make a dispute finding in this matter. Then secondly, and I'll assume that the Commission can make a dispute finding, whether it is then able to, in jurisdictional terms, make the orders which might ultimately be sought by the union.

PN208

So for that reason there is going to be some argument about jurisdictional issues, particularly looking at aspects of judicial versus arbitral power and we would say in those circumstances it is quite appropriate that the company be legally represented. Mr Wallace is not, even though he appeared before you last time when the matter was effectively being conciliated, he is not an experienced advocate. His position in the company is Operations Manager. He is an operational person so he does not have significant experience as an advocate or even necessarily significant experience coming down to the Commission although he has certainly done that probably more times than he wants to.

PN209

Further, United and indeed Extrata do not have dedicated IR and HR officers, they don't have people who are experienced advocates, certainly not with the experience that I think for example Mr Endacott would have here before this Commission. So we say for those reasons, and given that we are going to get into issues of judicial versus arbitral powers which raise points of statutory interpretation and referring to cases and interpreting the Constitution we say in those circumstances it is unrealistic to expect that Mr Wallace or any other operations person from the company would be in a position to put those arguments and indeed it is entirely appropriate that the company be legally represented.

PN210

THE COMMISSIONER: Thank you. Mr Endacott.

PN211

MR ENDACOTT: I respond on the following basis. Firstly, Extrata is a multimillion billion mining company. It actually owns numerous mines and in some proceedings it might set them out but I think it is about 17 mines it owns in Australia.

PN212

THE COMMISSIONER: If it helps you I am broadly across Extrata's size and the rest.

PN213

MR ENDACOTT: It is a company that employees many people, many thousands of people from my understanding and in fact would, within its ranks, have someone who is able to attend a Commission proceeding which is a lay jurisdiction and a jurisdiction that can operate with minimal legal technicality and form.

PN214

THE COMMISSIONER: That's the theory, Mr Endacott.

PN215

MR ENDACOTT: Yes and certainly on that point we would say the argument, if it is pressed on the basis the company can't adequately be legally represented unless represented by counsel then we would say that would just seem not to be right on the circumstances existing. There must be someone within the organisation that has IR experience or has some sort of legal qualifications. The other point is the reference is there is no one from the company as experienced as I. I mean on the last occasion - - -

PN216

THE COMMISSIONER: That's a hard one to argue against, isn't it?

PN217

MR ENDACOTT: Yes, well I mean the company can't have it both ways. It can't have a situation that it turns up today and says that you know they would be at some sort of disadvantage because of my experience. I am a lay advocate, when in the adjournment during discussions about trying to work out what is the company's jurisdictional point they seem to, in front of colleagues and delegates, refer to my ability as limited and refer to their reference, they have told me before about how limited my ability is. They can't turn up today and say, oh we will be somehow disadvantaged because the company's experience, while the law firm obviously on instruction, has the indignation when you raise issues of, you know, what are your jurisdictional points, to only respond by a cheap shot about your supposed ability.

PN218

The other point and we say for one that argument should just fall on its face. The issue about the matter being so complicated, I mean ultimately there will be a dispute about the sick leave rights that should have been afforded to the employee in question, there will be an order. We seek some sort of order or award from the Commission about what are the employee's rights. Now we are not seeking this Commission to enforce a right, we are seeking the Commission to award an order to express, make a right, with respect to the employee in question. We say that that is something which the Commission is required to consider in any matter that is before it. I mean it is no novel complex argument in this case.

PN219

With respect to the finding of a dispute, I say it falls down in two regards. One is the Commission would be aware that because of the transitional rules that operate in New South Wales that there is a referral of power for intrastate disputes, not interstate disputes, but intrastate disputes, so there would no issue about arguing a dispute before the Commission. Secondly, even if you just go the certified agreement it is a division three agreement which is resolving a dispute between the union, the employees and the company and deals with the absenteeism policy and sick leave. So, I mean, I don't want to take you to it any further - - -

PN220

THE COMMISSIONER: We are starting to move into the jurisdictional argument aren't we?

PN221

MR ENDACOTT: I am, but the point I am getting at is that it has been raised as some sort of complex, jurisdictional point that needs to be argued when the drover's dog on its face could say well you have a agreement in resolution of dispute that deals with the issues in a general sense, there must exist a dispute. So in that regard we say there's got to be some merit. There has got to be some exceptional high hurdle with respect to these issues that are raised, not just saying well we are going to raise the issue, it has got to be raised with some sort of argument that on its face isn't clearly flawed on its face, carries some weight and requires legal representation, and we ask that it be opposed. We oppose the leave and ask the Commission not to grant leave.

PN222

THE COMMISSIONER: Do you wish to respond?

PN223

MR FREDERICKS: Just briefly Commissioner. If I want to I could perhaps just take a narrow point that the respondent is United Collieries and they certainly don't employ thousands of people. But looking at Extrata more broadly Mr Endacott says they must employ someone who can do this, well maybe he is better across my client's employee list than I am but the reality is they don't. And the fact that Mr Endacott is a lay advocate rather than legally qualified doesn't draw away from the fact that he is an advocate with experience in this jurisdiction.

PN224

He is correct in saying that this jurisdiction is supposed to be approached with a minimum of legal technicality and form and we all know that doesn't always happen. The place where it is most least likely to happen is where there are jurisdictional and statutory arguments to be had. We say that the very issues Mr Endacott has raised points to some of the complexities that are going to have to be dealt with in this case. We are talking about what is judicial power versus arbitral power. He says this is a dispute about sick leave rights, sick leave rights which are set out in the certified agreement. That clearly raises the spectre that the Commission will be asked to interpret the meaning of the certified agreement and will clearly give rise as to what is the jurisdictional power of the Commission to do that, is it asked to be exercising judicial power or arbitral power.

PN225

If the Commission is asked to make an award we are going to be faced with the issue well what ability does the Commission have to make an award in the face of a certified agreement that is in time. What effect, if any, will that award have. How will that interact with the certified agreement. So we are going to be, unfortunately I think, going a little bit through the provisions as the legislation that deal with the interactions of certified agreements and awards. Even though ultimately, you know, the facts of the case might be quite simple, whether the Commission can ultimately get to those facts I think will be a bit more complicated and it is clearly going to squarely give rise to issues of judicial versus arbitral power and the potentially further down the track issues of how certified agreement interact with awards. You know, what power the Commission has, what ability the Commission actually has to make any orders which are sought.

PN226

THE COMMISSIONER: The company on previous occasions sought to have the jurisdictional argument heard separately to the substantive argument.

PN227

MR FREDERICKS: That's correct and I think, just looking and unfortunately some of that discussion was off the record.

PN228

THE COMMISSIONER: No well that particular part of the discussion was firmly on the record, I reviewed it last night. Mr Wallace at paragraph 193.

PN229

MR FREDERICKS: Yes Mr Wallace says that he would like to be heard separately and in fact earlier on in paragraph 187 - - -

PN230

THE COMMISSIONER: This really doesn't bear a long discussion. What I am telling you is if that remains the position - - -

PN231

MR FREDERICKS: Yes, sorry.

PN232

THE COMMISSIONER: Sorry I am asking you does that remain the position? It's a yes, no?

PN233

MR FREDERICKS: Yes.

PN234

THE COMMISSIONER: Given that there will be jurisdictional argument and it will be heard separately to the argument which may arise, depending on my decision on the jurisdictional argument, I'll grant leave to Mr Fredericks, or another representative of his firm, in relation to the jurisdictional argument. But we will see where we go if it moves to the substantive argument.

PN235

Now another question was raised on the last occasion. I think this occurred off the record as to who had the onus in relation to the jurisdictional point. Not I think Mr Wallace after consulting Mr Turner, and you can tell me if I am wrong, Mr Wallace, maintained that the jurisdictional onus fell on the union rather than the employer. Is that a position you still maintain?

PN236

MR FREDERICKS: The short answer is yes, but I'd like to give a slightly longer version of that.

PN237

THE COMMISSIONER: You can give me the slightly longer version.

PN238

MR FREDERICKS: It is commonly accepted that the party which seeks to attract jurisdiction has the onus of showing that jurisdiction is there which would be the union. I do accept however, often the practice of this Commission where jurisdiction is being challenged, that what effectively happens that even though the onus might notionally be on the union the employer effectively goes first in challenging that jurisdiction.

PN239

THE COMMISSIONER: Well that's the very reasonable approach because that is the approach I am going to take. Unless you believe differently, Mr Endacott?

PN240

MR ENDACOTT: No I don't oppose that approach. I always recall the true test to be that if prima facie jurisdiction exists then it was the party that was asserting lack of jurisdiction that would present their case.

PN241

THE COMMISSIONER: You put it more cogently than me. That is the position I adopt.

PN242

MR FREDERICKS: Yes.

PN243

THE COMMISSIONER: Well, it is the usual position here that once an application is before the Commission one presumes that there's jurisdiction until somebody argues that there's not, and the onus falls on that party to tell the Commission why we don't have jurisdiction, so that's the way we're going to do it. When do you want to do it; this is mention and programming today?

PN244

MR FREDERICKS: Your Honour, we're happy to do it sooner rather than later. What would be of assistance prior to any jurisdictional hearing is if the union actually filed the orders which they're going to ask the Commission to make.

PN245

THE COMMISSIONER: I have a couple of questions for the union about that actually so you may sit for a moment. Mr Endacott, is this essentially an application - I know it's a section 99 application but is it essentially an application under section 170LW relying upon clause 25 of the certified agreement?

PN246

MR ENDACOTT: No, it's not. It's a section 99 application and we would be seeking an order or award that would make rights, sick leave rights and entitlements for the employee in question, which would be as we would seek it. And I now my friend said that - one of the issues they wanted to press was whether the Commission can make that sort of award when there was an agreement - was there was a certified agreement in its currency. Certainly we say the agreement is quite specific in this case, the certified agreement is, and it operates to the effect of, if I can find the clause, it says:

PN247

Nothing in this procedure removes the rights of either party to have the matter taken to the Australian Industrial Relations Commission.

PN248

THE COMMISSIONER: Where is that?

PN249

MR ENDACOTT: It's in clause 37. I'm still reading off the internet - - -

PN250

THE COMMISSIONER: I was looking at 25 so we'll go to 37. Clause 37 is attendance policy.

PN251

MR ENDACOTT: Yes.

PN252

THE COMMISSIONER: So specifically the introductory paragraph you're referring to?

PN253

MR ENDACOTT: No, Commissioner. I went to a paragraph later on which I will take you to. It's the top of page 28. It is 37.3.

PN254

THE COMMISSIONER: I have it.

PN255

MR ENDACOTT: Yes. It says:

PN256

Nothing in this procedure removes the right of either party ...(reads)... Australian Industrial Relations Commission.

PN257

But then again, and I note you said, which was the second point I was going to take you to, was the introductory paragraph, which is the first sentence which is this:

PN258

It does not reduce award or legal entitlements.

PN259

- which is a specific reference to the policy:

PN260

It does not reduce award or legal entitlements, instead it provides guidelines to ensure consistency and fairness.

PN261

THE COMMISSIONER: So you say, I take it, or do you say if you refer back to clause 25 disputes procedure - and I suppose we're starting to run the case now but perhaps it will solve some issues, resolve some issues - 25.2(4) - tell me when you're there, page 19.

PN262

MR ENDACOTT: Yes.

PN263

THE COMMISSIONER: So you're saying the provisions of 37, the relevant provisions of clause 37 are in addition or replace that provision in 25.2(4) in relation to sick leave?

PN264

MR ENDACOTT: Yes. The provisions under the Act remain. That's just a mechanism that can exist to resolve disputes. The general power of the Commission to arbitrate remains. The Commission may make a dispute tomorrow about the terms and conditions to apply to industry generally including United with respect to any matters in the making of an order or the like, but we're not asking and there is no application before the Commission to seek resolution of this matter. That is, we're not seeking interpretation of the operation of the agreement; we're seeking an order or award with respect to the rights to take leave, in the form of sick leave or absentee leave, for Mr Turner. We say there's no jurisdictional bar with respect to that to take into account - - -

PN265

THE COMMISSIONER: I'm well aware you say there's no jurisdictional bar. Have you prepared a draft order to give effect to what you want me to do?

PN266

MR ENDACOTT: No, not a precise form of the order but it will be an order, we can assure the Commission, that will make rights with respect to sick leave for Mr Turner, so it will be the order of creating a right as his right with respect to the taking of leave.

PN267

THE COMMISSIONER: Which would involve an interpretation of the agreement. How can it not?

PN268

MR ENDACOTT: In saying this, and I know my friend says there's a fine line, I mean, I haven't read them for a while but the two most noted cases I think are Ranger Uranium and Wool..... is one that come to mind, but don't hold me to that, and I think it was in one or the other where the well known term is that the process of arbitration is the making of new rights by the comparison of an existing right. In that regard we'll be asking for you to make a new right with respect to Mr Turner. Obviously in making a new right you have to determine that the rights that do exist currently, not only the rights that exist currently but also the other substratum of facts that are relevant in holding, with respect, the substantial merits of the case with respect to making those rights.

PN269

THE COMMISSIONER: I think it gives you some outline, Mr Fredericks, as to what's going on. I don't think it's going to be the simple case that you foreshadow, Mr Endacott. We'll just go off the record for a moment just to talk about dates.

OFF THE RECORD [10.27am

RESUMES [10.35am]

PN270

THE COMMISSIONER: I have conferred with the parties as to the suitable procedure to be followed in this matter and the following program is agreed.

PN271

The CFMEU will supply a draft order setting out its demand by close of business on 30 November 2004.

PN272

The company will file its submissions in relation to jurisdiction no later than close of business on 7 December 2004.

PN273

The union will respond with its written submissions in reply no later than close of business on 14 December 2004.

PN274

The matter will be set down for hearing in Sydney at 10.00 am on Thursday, 16 December 2004 for jurisdictional argument.

PN275

Is there anything further, gentlemen?

PN276

MR FREDERICKS: No, Commissioner, thank you.

PN277

THE COMMISSIONER: We will adjourn.

ADJOURNED UNTIL THURSDAY, 16 DECEMBER 2004 [10.37am]