What is a Hearing

A hearing is where the Tribunal 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

According to s 48 of the Owner‑Drivers (Contracts and Disputes) Act 2007 (WA), if the Tribunal arbitrates a dispute it may:

(a) order the payment of a sum of money —

(i) found by the Tribunal to be owing by one party to another party; or

(ii) by way of damages (including exemplary damages and damages in the nature of interest); or

(iii) by way of restitution;

(b) order the refund of any money paid under an owner-driver contract;

(c) make an order in the nature of an order for specific performance of an owner-driver contract;

(d) declare that a debt is, or is not, owing;

(e) order a party to do, or to refrain from doing, something;

(f) make any other order it considers fair, including declaring void any unjust term of an owner-driver contract.

 In making an order under s 48(4), the Tribunal cannot —

(a) insert a term into; or

(b) subject to subsection (4)(f), otherwise vary, an owner-driver contract.

In making a determination, the Tribunal must endeavour to ensure that the matter is resolved taking into account any agreement reached by the parties on any particular issue and on terms that could reasonably have been agreed between the parties in the first instance or by conciliation. The Tribunal may also make orders to prevent persons from entering into owner-driver contracts.