Western Australian Industrial Relations Commission

Procedures


The Industrial Relations Act 1979 allows for a person, who is or was an employee, to make a claim to the Commission that they have been:

            (i)     harshly, oppressively or unfairly dismissed from employment; and/or
            (ii)    denied by their employer a benefit, not being a benefit under an award or order, to which the employee is entitled under their contract of service.

If you wish to make a claim to the Commission, you must complete comply with the following procedures:

  • Complete and file a Form 2 - Unfair Dismissal Application, or complete and file a Form 3 - Contractual Benefit Claim.
  • The applicant can lodge their Form 2 and/or Form 3 in person at the Commission’s Registry. The filing fee is $50.00 for an unfair dismissal application and/or contractual benefit claim.
  • Alternatively, an unfair dismissal application and/or contractual benefit claim may be lodged electronically via the Commission's online lodgement system.
  • Relevant application number(s) are allocated and a copy of your Form and/or Form 3 will be returned to you for your records. The original is retained for the Commission's file.
  • There is no need for you to send a copy of your Form 2 and/or Form 3 to your employer. The Commission’s Registry will do this for you.
  • The employer has 21 days from the date they receive Form 2 and/or Form 3 to respond.
  • If the employer chooses to respond to an unfair dismissal application, they must complete a Form 2A - Employer Response to Unfair Dismissal. If they are responding to a contractual benefit claim, and employer must complete a Form 3A - Employer Response to Contractual Benefit Claim.
  • The employer can lodge their Form 2A and/or Form 3A in person at the Commission’s Registry.
  • Alternatively, they may lodge those forms electronically via the Commission's online lodgement system.
  • A copy of the employer’s response(s) will be returned to them for their records. The original is retained for the Commission's file.

The Commission’s Registry will then send you a copy of the Form 2A and/or Form 3A.  Following that, you and the employer will be contacted by the Commission to arrange to have your matter(s) dealt with.  Usually, this would involve the Commission scheduling a conciliation conference between the parties to assist them to resolve the issue.

 

 

 

 

 

 

 

Introduction

The Industrial Relations Act 1979 recognises industrial organisations and associations as representatives of either employers or employees. This includes both organisations of employees (more commonly referred to as unions) and organisations of employers (more commonly referred to as employer associations). Associations registered under the Industrial Relations Act 1979 refer to a body which is formed by two or more organisations.

Division 4 - Industrial organisations and associations (s 52 to 80) of the Industrial Relations Act 1979 regulates how registered organisations operate and identifies specific compliance requirements. This includes, but is not limited to:

  • how organisations are registered;
  • how they may alter their registered rules and/or name;
  • the information they are required to provide to the Registrar in relation to membership numbers, office bearers and financial reports; and
  • how they must conduct elections for office bearers.

Complaints by Members of Registered Organisations

Section 66 of the Industrial Relations Act 1979 provides an avenue for:

  • a person who is or has been a member of an organisation; or
  • a person who has applied for and not been admitted to membership in an organisation; or
  • the Registrar, acting on the complaint of or on behalf of a person referred to in

s 66(1)(a); or

  • the Registrar of their own motion,

to make an application to the Chief Commissioner for orders and/or directions relating to the rules of the organisation and their observance, non-observance or the manner of their observance. The Chief Commissioner has the authority to determine whether an organisation has breached its rules in this regard.

The Chief Commissioner may also declare a true interpretation of any rule and enquire into any election for an office in the organisation in circumstances where it is alleged that there is an irregularity in the election process.

In addition, the Chief Commissioner has the authority to determine whether particular rules should be disallowed in circumstances where any rule is:

  • inconsistent with any act, law or State industrial instrument; or
  • is tyrannical or oppressive; or
  • prevents or hinders any member of an organisation from observing any act, law or State industrial instrument; or
  • imposes unreasonable conditions on a member or members; or
  • is inconsistent with the democratic control of the organisation by its members.

Applications made pursuant to s 66 of the Industrial Relations Act 1979 are to be filed on a Form 1 - General Application. Grounds in support of the application must be included in the Form 1. In these applications the individual(s) are the applicant(s) and the organisation is the respondent.

The Form 1 must state the correct name of the registered organisation, in full, and contain the relevant contact details for each party. A list of all registered organisations, along with the registered rules of each organisation is available on the Commission’s website, here.

The grounds in support of the application should state whether you are a current member of the organisation, a previous member, or a person who has been denied membership.

The grounds should also state which particular rule(s) of the organisation that you allege have not been complied with and a brief summary of the facts, as you perceive them, which have led to the breach, non-compliance or inappropriate action.

Further, the grounds must specify the remedy you are seeking. For example, you may seek an order from the Chief Commissioner that a specific rule or rules be disallowed, or that the Secretary of the organisation be directed to undertake a certain course of action.

Once filed, the application will be forwarded to the Chief Commissioner's Chambers to be endorsed with procedural directions which are issued to the Registrar of the Commission.

The directions will ordinarily include the date and time by which the Registrar is to serve the application on the parties and a date for a directions hearing. The directions may also include a requirement to swear an affidavit setting out the facts which support the application.

The purpose of a directions hearing is to establish whether there are any preliminary issues which need to be dealt with and whether any documentation relevant to the application is sought to be discovered from any of the parties. A date for the hearing of the application will be set during the directions hearing.

 

 

 

 

 

 

The Relevant Law

The relevant law for these matters is the Industrial Relations Act 1979 and the Industrial Relations Commission Regulations 2005.

There are other areas of law which you may need to examine to proceed with your appeal. Much of the law which applies can be found in the reasons for decision of the Industrial Appeal Court (the next level of appeal after the Full Bench) and the Commission itself in the Western Australian Industrial Gazette, or at  the Alexander Library, or the law libraries of the University of Western Australia or Murdoch University.

An appeal is not a chance to re-run your case. Normally an appeal is heard and determined on the evidence and matters raised in the initial hearing before the Commission, or the Industrial Magistrate. This means that generally speaking you will not be able to call witnesses to give evidence or to provide documents to the Full Bench, which were not before the Commission or Court at the initial hearing (refer Western Australian Industrial Relations Commission - Representing Yourself.

It is strongly recommended that you seek independent legal or industrial advice to ensure you apply the correct provisions of the relevant legislation and use related and significant case references.

Step One - Filing a Notice of Appeal

A Form 8 - Notice of Appeal Against a Decision Made by the Commission or the Industrial Magistrates Court is made against the decision of a single Commissioner (s 49 of the Industrial Relations Act 1979) or against the decision of an Industrial Magistrate (s 84 of the Industrial Relations Act 1979) and is heard by the Presiding Commissioner (either the Chief Commissioner or the Senior Commissioner) and at least two Commissioners. The Commissioner who heard the original matter will not be a member of the Full Bench.

  • A Notice of Appeal must be instituted within 21 days of the initial decision (s 49(3) of the Industrial Relations Act 1979). The date of the decision is taken to be the date when the decision is sealed by the Commissioner and deposited in the Commission’s Registry. In the case of a decision of an Industrial Magistrate, the date of the decision is the date it was delivered.
  • When completing the Form 8, the person appealing against the initial decision is known as the appellant and the person opposing the appeal is the respondent. The full name and full street address of each party as cited in the original matter is to be completed on the Form 8.
  • The Form 98needs to cite the name of the Commissioner (or Industrial Magistrate), the number of the original application and the date of the decision. The appeal may be against all of the decision or just part of it. On the Form 8 you need to clearly state whether you are appealing the entire decision or just part of it, and which part.
  • The grounds of the appeal must be included in the Form 8. Generally speaking, the grounds of an appeal need to demonstrate clearly that the original decision:
    • did not properly account for the evidence put at the hearing; and/or
    • erred in the application of the relevant law (which includes case law).

In stating the grounds of your appeal, you must specify where you believe the Commissioner or Industrial Magistrate erred in his/her findings. For each ground you must then state the particular areas of the Reasons for Decision where you believe that the decision was against the evidence or the weight of the evidence and/or why it is wrong in law.

You must also clearly state the remedy you are seeking from the Full Bench. For example, that the original decision be quashed, or perhaps that the application be referred back to the Commission/Industrial Magistrate for further hearing and determination.

Before a Form 8 is able to be accepted for filing, the Registrar must be satisfied that the grounds in support of the appeal are complete, as outlined above. If the grounds are not properly stated, then the Form 8 will not be accepted for filing.

Once you have filed your Form 8, you must then, within 14 days, file and serve your appeal books (see reg 102(10) of the Industrial Relations Commission Regulations 2005).

An appeal book must contain:

  • a copy of the Form 8;
  • a copy of the application or reference instituting the proceedings before the Commission/Industrial Magistrate;
  • a copy of any answer or counter proposal filed in the proceedings;
  • where applicable, a copy of that part or those parts of the settled issues containing the matters relevant to the appeal which were before the Commission/Industrial Magistrate;
  • any written submissions, or outline of submissions, provided to the Commission/Industrial Magistrate;
  • a copy of the decision that is the subject of the appeal and the Commission's/Industrial Magistrate’s reasons for that decision;
  • a list of the page numbers of the transcript of the proceedings at which reference is made to the subject matter of the appeal;
  • a copy of all relevant exhibits tendered during the proceedings; and
  • a copy of any other document which will be required by the Full Bench to determine the appeal, including any further particulars of the claim or answer filed in the proceedings.

In addition, the Chief Commissioner has directed that an appeal book is to contain a contents page, and that all pages within the appeal book are numbered.

The Registrar is not to accept an appeal book unless all documents contained therein are clearly legible.

The requirements relating to appeal books are outlined in reg 102(11A) of the Industrial Relations Commission Regulations 2005. Take particular note of what an appeal book must contain and the fact that you will need to prepare at least five copies. This includes three copies for the Full Bench, one for each respondent and one for your own use.

Appeal books must be bound. The Commission’s preference is that the books are bound in 'comb binding'. It is also requested that one copy is left unbound to assist in the lodgement and scanning process undertaken within the Registry.

Filing an Appeal Outside of 21 Days

A person who has failed to file a Form 8 within 21 days of the decision may still be able to file an appeal, provided they also file an application seeking an extension of time. An extension of time application is made on a Form 1A - Multipurpose Form.

In any applications for orders made to the Full Bench which are related to the appeal, you are the applicant, rather than the appellant, and the person opposing those orders is called the respondent.

An application seeking to extend the time to file an appeal to the Full Bench must include grounds which demonstrate sound reasons why the appeal has been filed out of time, and why the Full Bench should grant the application. The granting of leave to extend the time is in no way automatic. Appellants run the risk of not being able to have their appeal heard if they do not file their appeal within the 21-day prescribed time frame.

When an application seeking to extend the time to file an appeal is filed, the Full Bench will consider the application after hearing from the applicant and the respondent. This may be done informally, or by way of a formal hearing. Parties will be kept informed by the Commission as to the status of the application, and whether they will be required to attend a hearing.

Following determination of the application to extend time to file an appeal, the Full Bench will issue relevant orders.

The same extension of time application process is to be followed where an extension of time is required to file appeal books, outside of the 14-day prescribed time period.

In some cases, a respondent to an appeal may to file an application that the appeal be “struck out” or dismissed. In this situation, the respondent to the appeal would become the applicant, and you (the appellant) would become the respondent. This type of application may be made where the respondent to the appeal takes the position that the appeal is incompetent or not within jurisdiction.

An application for a stay is made to suspend the operation of an order of the Commission which requires a party to take some course of action within a certain period of time. For example, as a party to the original application you may have been ordered to pay a sum of money by a certain date and you are appealing against that order.

An order granting a stay may be made by the presiding Commissioner (either the Chief Commissioner or the Senior Commissioner) under s 49(11) of the Industrial Relations Act 1979, which provides that any time after an appeal to the Full Bench has been instituted, a person who has a sufficient interest may apply to the Commission for an order that the operation of the decision appealed against be stayed wholly, or in part, pending the hearing and determination of the appeal (refer also to reg 102(6) of the Industrial Relations Commission Regulations 2005).

Section 49(12) of the Industrial Relations Act 1979 provides that an application under s 49(11) shall be heard and determined by the presiding Commissioner.

An application for a stay needs to be made separately to the appeal and is commenced by filing a Form 1 - General Application. The stay application will be issued with a different application number to the appeal.

The grounds in support of the application must be included in the Form 1. You will need to be able to satisfy the presiding Commissioner that it is appropriate to grant the stay. This is because ordinarily a successful party is entitled to enjoy the fruits of their litigation (i.e. the benefit of the order at first instance).

The grounds in support of an application for a stay should refer to the following:

  • the reason for seeking the stay;
  • the consequences of the stay not being granted (e.g. will the appeal be made nugatory (lacking in utility) if the stay is not granted?);
  • anything else which affects the balance of convenience if the stay is not granted (i.e. which party will be inconvenienced more if the stay is not granted);
  • whether the appeal has a reasonable prospect of success; and
  • if there are any other special circumstances that support the granting of the stay.

Once filed, the application will be forwarded to the presiding Commissioner's Chambers to be endorsed with procedural directions which are issued to the Registrar of the Commission.

The directions will ordinarily include the date and time by which the Registrar is to serve the application on the parties and a hearing date. The directions may also include a requirement to swear an affidavit setting out the facts which support the application.

The granting of a stay is a discretionary decision and depends upon the application of principles which have been discussed in a number of cases (see John Holland Group Pty Ltd v CFMEU (2005) 85 WAIG 3918 at [32]-[38], Seacode Nominees Pty Ltd v Nigel Anthony Penfold (2005) 85 WAIG 3926 at [6]-[8], [12]-[17] and The St Cecilia's College School Board v Carmelina Grigson (2006) 86 WAIG 1260). These principles will be considered by the presiding Commissioner in deciding, in each case, whether a stay should or should not be granted.


Stay of Order of Industrial Magistrate

An order or judgement of an Industrial Magistrate is automatically suspended (stayed) if an appeal is filed, until such time as the appeal has been heard and determined (see reg 42 of the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005). Therefore, there is no need to apply for a stay in this situation.

 

 

 

 

 

Discovery is intended to promote a fair hearing for both sides.  It is a process to ensure, as much as possible, that each party has the documents that relate to the matters in question (Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch v The Western Australian Hotels and Hospitality Association Incorporated and Burswood Resort Hotel & Others (1995) 75 WAIG 1801, 1805).  Documents are discoverable whether they support a party’s case or not.  Discovery helps to avoid surprise, puts parties on an equal footing, and helps to highlight the issues in dispute between the parties.  Either party can seek discovery of documents from the other party.  That is, an employer can seek discovery from an employee, and an employee can seek discovery from an employer.  Documents discovered are not necessarily provided to the Commission.  The parties each choose to put to the Commission those documents which support their case or undermine the other party’s case. 

Informal discovery

The Commission will often ask the parties to engage in ‘informal discovery’.  That means that the parties will discuss which documents they are able to provide to each other.  They then provide each other with copies of the documents by agreement.  Once a party has received a document, it is up to them to decide whether they use it in their case. 

Parties may prefer this process because they do not have to comply with strict deadlines, and they have greater control over the types of documents they can exchange. 

If this process breaks down, a party may apply for orders to force discovery of documents.  This becomes ‘formal discovery’.  The Commission then becomes much more involved in supervising the process. 

Formal discovery

Formal discovery is where the Commission makes orders requiring the parties to provide documents within specified timeframes.  It is good practice to ask the other party for the documents before making a formal application.  The Commission is unlikely to make orders if the party seeking discovery has not asked for the documents first. 

A formal application is made by filing a Form 1A - Multipurpose Form , stating that discovery is sought for a specific class or classes of documents.  A party can request discovery of more than one class of documents in a single application for discovery. 

Considerations

Applications for discovery in the Commission have three main considerations: 

  1. The documents sought must be relevant to a matter in question in the proceedings. To determine the scope of discovery, the scope of matters in question is given a broad meaning.  This means documents are discoverable if they direct a party to a line of inquiry.  However, requests must be reasonable. 
  2. The documents must be in the ‘possession, custody or control’ of the other party.
    • Possession means that the other party owns the document.
    • Custody means that the party physically holds the document, regardless of whether they own the document; and
    • Control means that the party is entitled to obtain the document from someone else.

This means that a party cannot be required to provide discovery of a document which is not in their possession, custody or control. 

  1. The request must be ‘just’. That is, the party applying for discovery must satisfy the Commission that the documents are necessary for the party to have a fair hearing. 

If a document is ‘privileged’, the document does not have to be given to the other party.  The party should still make the other party aware of the document’s existence, by describing it in a general way, but assert that it is privileged.  Commonly this will include ‘legal professional privilege’, which is correspondence between lawyer and client for the purpose of obtaining legal advice. 

There is more information about discovery in Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch v The Western Australian Hotels and Hospitality Association Incorporated and Burswood Resort Hotel & Others (1995) 75 WAIG 1801, at page 1805, under the heading ‘General Discovery’. 

 

Contact Us

Western Australian Industrial Relations Commission
17th Floor
111 St Georges Terrace
PERTH WA 6000

Phone : (08) 9420 4444
Facsimile : (08) 9420 4500
Free Call : 1800 624 263

Free Fax :1800 804 987

Email : Registry

 

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