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Responding to a contractual benefit claim

A contractual benefit claim is a claim made by an employee or former employee that they are entitled to a benefit under their employment contract which has been denied to them by their employer.

If your employee or former employee lodges a contractual benefit claim in the Commission, Registry will serve you with a copy of the claim and you will have the opportunity to contest the claim through filing a response.

Please refer to the Commission's Fact Sheets for further guidance on proceedings at the Commission.

Critical information

  • The claim must be brought within 6 years of the entitlement becoming due.
  • Employment benefits can be agreed in writing, verbally and or through other means. Benefits can include monetary benefits (such as overtime or special allowances), or non-monetary benefits.
  • If the Commission upholds the claim, it may order you to provide your employee or former employee with the benefit/s that they were denied. No interest or penalty is applicable.

Helpful quicklinks

Fact sheets

Applications and forms

Coverage and jurisdiction

What to expect out of the process

  1. Step 1 - Being served an application

    If your employee or former employee files a claim of denied contractual benefit in the Commission, you will be served with the claim by the Commission's Registry.

  2. Step 2 - Response

    If you are served a claim by your employee or former employee, you may lodge a response with the Commission within 21 days of being served with the claim.

  3. Step 3 - Conciliation conference

    A conciliation conference is held between you and your former employer in order to assist you both to try and reach a mutually agreed resolution.

  4. Step 4 - Hearing

    If the parties do not reach an agreement at the conference, then a hearing is held after which the Commission will make a binding decision on the matter.

Lodging a response

What happens next?

What happens next?

  • After you have filed your response, the Commission’s Registry will provide a copy to the applicant and a copy to you for your records.
  • The matter will be allocated to a Commissioner, you will be contacted by the Commission and the matter will be listed for a conciliation conference.

What is a conciliation conference?

In the context of the Commission, a conciliation conference is a conference conducted by a Commissioner who can help the parties to resolve their employment dispute. The purpose of the conciliation is to explore whether an agreement can be reached between the parties, not to decide who is right or wrong.

Conciliation conferences are private and are conducted on a 'without prejudice' basis. This means that what is discussed at a conciliation conference cannot be used against one of the parties if the matter goes to hearing. This allows the parties to explore possible settlement options without fear of the other side using any offers or concessions made at the conference as an admission to various aspects of a claim. The conference is not recorded, and no transcript is produced. Any visual or audio recording is strictly prohibited. An agreement may be reached during or after the conference, the parties have control over the outcome before the matter reaches the hearing stage. In contrast, if the matter goes to hearing, the Commission will decide the outcome of the matter.

For more information please read the Commission’s conciliation conference fact sheet by clicking here.

Possible outcomes of conciliation

  • An agreement may be reached during or after the conference.
  • If an agreement is not reached, The Commission may hold further conferences depending on the circumstances, or list the matter for hearing.

What is a hearing?

A hearing is where the Commission receives arguments and evidence from both parties and makes a binding decision on a matter. It usually takes place in a room that is similar to a court room. There are two types of hearings: interlocutory or preliminary hearings and substantive hearings.

 

Interlocutory or preliminary hearings

There may be issues that have to be determined by the Commission before the merits or substance of an application can be dealt with. These preliminary (or interlocutory) matters may relate to an issue with the employee’s claim that needs to be resolved before the rest of the matter can proceed, such as an application for discovery of documents.

Some examples of preliminary issues include:

  • whether the Commission has jurisdiction to deal with the application;
  • whether the employee is under the salary cap; or
  • whether the Commission can accept an application that was made out of time.

There may be one or more interlocutory hearings before the substantive hearing to deal with preliminary or procedural issues.

A Directions hearing is similar to a preliminary hearing. It is where the Commission will set out how the matter will progress. This can include setting out a timeline for when things ought to occur such as discovery, or when things are to be filed with the Commission, such as outlines of submissions or witness statements.

Substantive hearing

A substantive hearing is where the Commission hears and determines the substance or merits of the employment or industrial issues in dispute.

 

For more information please read the Commission’s hearing fact sheet by clicking here.

For information on evidence, please read the Commission’s evidence fact sheet by clicking here.

For information on representation and representing yourself, please read the Commission’s representation fact sheet by clicking here.

Possible outcomes

The Commission may order you to provide your employee or former employee with the benefit that they were denied. No interest or penalty is applicable.

If the Commission makes an order against you and you do not comply with the order (for example, you do not pay the compensation awarded as ordered by the Commission), the employee can apply to the Industrial Magistrates Court to have the Commission's order enforced. The Industrial Magistrates Court can also impose a penalty of up to $5,000 on the employer for non-compliance with the Commission's order.

Frequently asked questions

Filing a response does not require a fee. There are generally no other costs associated with your matter unless you purchase transcript of the proceedings or summon a witness for hearing. Each party pays their own costs in relation to preparation of their case. This includes legal costs if you decide to engage a lawyer or paid agent to represent you.

The time span of the contractual benefit claim process highly depends on each individual case and is not fixed. There will be many factors which will affect the length of the process, including whether the application proceeds to hearing, whether any interlocutory hearings are necessary and the complexity of the matter.

A party to a contractual benefit claim can make an application to the Full Bench to review the decision of the single member of the Commission if they believe the decision was incorrect. An appeal is not an opportunity 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. This means that, in general, 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 at the initial hearing. Generally, the grounds of 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).

This means that when stating your grounds of appeal, you must specify where you believe the Commissioner erred in his/her findings. For each ground of appeal, you must state the particular areas of the Reasons for Decision where you believe the decision was against the evidence presented and/or why it is wrong in law. You must also clearly state the remedy you are seeking from the Full Bench, for example, for the application to be referred back to the Commission for further hearing and determination. You can appeal the Commission's decision to the Full Bench by lodging a Form 8 - Notice of Appeal Against a Decision Made by the Commission or the Industrial Magistrates Court. You must lodge the form within 21 days of the initial decision. After filing your Form 8, you must file and serve your appeal books within 14 days.

Given the legal complexity of most appeals, it is strongly recommended you seek independent legal or industrial advice before lodging your appeal. For more information on appeals, click here.

The employee and the employer to an application of contractual benefit may be represented by another person or they may represent themselves. Parties can be represented by a union or employer organisation, lawyer, industrial agent or a relative or friend. Except where the representative is a lawyer, the party being represented must file a Form 11 – Notification of Representative Commencing or Ceasing to Act to confirm that another person is representing them.

The Commission is committed to ensuring its information, facilities and services are accessible to all members of the Western Australian community. For more information on accessibility, please visit our Access and inclusion page.

You can contact the Commission's Registry by email, phone or in-person. We also have helpful Fact Sheets which may assist in answering your questions.