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 of a hearing

The Commissioner who hears the evidence and arguments might make a decision about the claim:

  • at the hearing, after all evidence and arguments are presented; or
  • after the hearing, by “reserving” the decision.

If the Commissioner “reserves” the decision, this means the Commissioner needs time to review everything that has been presented and consider the issues before making any orders or giving a decision.   

 

If your claim is unsuccessful, the Commission will usually dismiss the claim. 

If your claim is successful, the Commission may:

  • order the employer to respond to the request in writing or provide more detailed reasons for their response

  • order the employer to grant the flexible working arrangement request

  • order the employer to make a specific change in the employee’s working arrangements

  • make a declaration about the request (that the employer refused the request or that the grounds on which the employer refused the request are, or are not, reasonable business grounds). 

The Commission’s orders are binding and enforceable. If anyone does not comply with the Commission’s orders, an enforcement application can be made to the Industrial Magistrates Court. That Court can make orders for penalties.