C2005/3106, Transcript of Proceedings [2005] AIRCTrans 1304 (10 June 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11751-1

COMMISSIONER ROBERTS

C2005/3106

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
AND
OCEANIC COAL AUSTRALIA LIMITED
s.99 - Notification of an industrial dispute
(C2005/3106)

NEWCASTLE

12.18PM, TUESDAY, 31 MAY 2005

PN1

MR G KELLY: For the Construction, Forestry, Mining and Energy Union Mining and Energy Division Northern District. With me is MR K ENDACOTT and also Commissioner, in the gallery I have the Lodge President and Lodge Secretary of West Wallsend.

PN2

MR R WILSON: Representing the Electrical Trades Union New South Wales branch and also representing the AMWU. With me I have MR K LONSDALE , delegate of the ETU or the CEPU in this matter, MR PETER MYER, he is a delegate of the AWU.

PN3

THE COMMISSIONER: Good. Thank you.

PN4

MR J WHALE: I seek leave to appear in this matter for the respondent pursuant to section 42(3)C of the Workplace Relations Act.

PN5

THE COMMISSIONER: Thank you. Is leave opposed?

PN6

MR KELLY: We oppose it, Commissioner.

PN7

THE COMMISSIONER: You do oppose leave?

PN8

MR KELLY: Yes Commissioner.

PN9

THE COMMISSIONER: Tell me why you should appear, Mr Whale?

PN10

MR WHALE: Thank you, Commissioner. Commissioner the subject matter of this dispute goes to the application interpretation of the West Wallsend Enterprise Agreement and the legal rights of the company to contract with independent contractors to provide services. The company does not employ specialist advocates and has formed the view that it can only be adequately represented by either a paid agent or counsel. I appear as a paid agent. I have appeared for this company on numerous occasions and have a long and established relationship with the company which forms part of the strata group of companies. Commissioner, it is my submission that my long association with the company warrants my appearance in these proceedings and therefore seek leave in the Commission to do so.

PN11

THE COMMISSIONER: In response, Mr Kelly?

PN12

MR KELLY: Thank you, Commissioner. Commissioner, Mr Whale is by his own admission a paid advocate. We are simply seeking conciliation, we are not seeking a drawn out legal process, we simply want to state our case Commissioner and get some views from - basically in conference so we don't believe that there needs to be a paid advocate when the operations manager is more than capable in our view of handling the issue. Thank you

PN13

THE COMMISSIONER: Thank you. Do you wish to speak?

PN14

MR WILSON: Commissioner, I concur with my colleague from the CFMEU.

PN15

THE COMMISSIONER: Thank you. Having heard the parties I will grant leave to Mr Whale to appear in this matter. Mr Kelly?

PN16

MR KELLY: Thank you, Commissioner. Commissioner, this dispute is simply a matter of interpretation by the company in their ability to access contractors. Commissioner our view is that we simply wish to have conciliation on this matter. We don't intend to put a whole ream of matters on transcript before that.

PN17

THE COMMISSIONER: Thank you. Do you agree, Mr Whale?

PN18

MR WHALE: Commissioner, the company is prepared to proceed directly into conference and reserves its rights in relation to arguing the substance of the matter if that does not result in a settlement of the matter.

PN19

THE COMMISSIONER: Well I think that applies to both the - that right applies to both parties, all three parties Mr Whale. We will adjourn immediately into conference.

<SHORT ADJOURNMENT [12.22PM]
<RESUMED [12.53PM]

PN20

THE COMMISSIONER: This matter is now resumed. During the conference break I have had the chance of speaking with both parties together. The parties have had some consultation separately from me and I have also had separate discussions with each side without the presence of the other side. It has been agreed by the parties, or requested by the parties that I issue a recommendation in this matter. I have agreed to do so and that recommendation will be issued by close of business tomorrow afternoon being 1 June. Do the parties wish to add anything to what I have said?

PN21

MR KELLY: No, Commissioner.

PN22

MR WHALE: No, Commissioner.

PN23

MR WILSON: No, Commissioner.

PN24

THE COMMISSIONER: This matter is adjourned.

<ADJOURNED INDEFINITELY [12.54PM]