Industrial Relations
Commission of New South Wales
PRACTICE DIRECTION No. 17
Applications
pursuant to section 84 (Unfair Dismissals) Industrial Relations Act 1996
Pursuant to Rule 89
of the Industrial Relations Commission Rules 1996
1. This Practice
Direction replaces Practice Direction No.11.
2. The purpose
of this Practice Direction is to facilitate the resolution of unfair dismissal
matters before the Industrial Relations Commission of New South Wales by
ensuring that such proceedings are conducted before the Commission in an
efficient and expeditious manner and that practitioners and others who appear
before the Commission do all they can to facilitate the just, quick and cost
effective disposal of unfair dismissal proceedings before the Commission.
3. This Practice
Direction shall come into force on 9th January 2006.
4. Allocation
of Listing Date
Upon filing of an application under section 84 of the Industrial
Relations Act 1996 the Registrar shall cause, either at the time of filing
or within a period of not more than seven days, a date to be fixed for the
matter to be conciliated by a Member of the Commission. The standard or usual time from filing to
the first listing for Conciliation and Directions shall be a period of 21 days.
5. Conciliation
(a) Practitioners,
industrial agents and others who appear before the Commission should do all
they can to facilitate the fair and prompt disposal of matters before the
Commission. Ways in which this should
occur include:
ready identification of the issues in dispute
ensuring readiness for the conciliation hearing
using their best endeavours to resolve the issues in
dispute
(b) Ordinarily
there should be only one conciliation, however, a Member may permit a further
conciliation conference.
(c) If an
applicant fails to appear at a conciliation conference, and has not provided a
clear and compelling reason for non-attendance, this may result in the matter
being dismissed, particularly if there is no appearance on two occasions.
6. Preliminary
Issues
(a) If a
preliminary issue, for example, a jurisdictional challenge is raised at the
conciliation conference the Member shall determine whether the matter shall be
heard as a threshold issue or be dealt with after conciliation. If the Member
determines that the issue should be heard before conciliation then the matter
shall be referred to the Registrar for allocation to a Member for hearing after
appropriate directions are made and the Member has established the time
required to hear the issue. In cases where the Member conducts a conciliation
and the conciliation fails the Member shall then forward the matter to the
Industrial Registrar for allocation to a Member for hearing. Directions will be
made by the Member which may be a modified form of the usual directions if the
matter is to be set down to hear a threshold issue.
(b) The Registrar
will subsequently advise the parties of a call over before the Industrial
Registrar and date or dates for hearing and the Court location for the hearing
of the matter.
7. Directions
for Arbitration
(a) When a
conciliation before a member of the Commission is unsuccessful, the usual
directions in paragraph 10 of this Practice Direction shall operate unless,
after application by a party to the proceedings, the Commission considers that
the "usual directions" should be modified or alternative directions
made.
(b) The Member of
the Commission shall also ascertain a reasonable estimate of the number of days
required for arbitration, specify in the Member's opinion the number of days
required for hearing and make any other appropriate directions having regard to
paragraphs 10 and 11 of this Practice Direction. The Member shall, forthwith, refer the parties to the List Office
of the Registry for the purpose of obtaining a hearing date(s) in accordance
with the Member's opinion of the number of days required for hearing and
directions which are made.
(c) On fixing a
date for hearing the List Office shall also allocate a date for a compliance
call-over of the matter and provide notice to the parties of the date, time and
place of such call-over in addition to information on the hearing date(s)
allocated.
(d) The compliance
check call-over will be administrative in nature in respect of matters in which
the applicant has complied with directions. That is, neither the applicant nor
the respondent will be required to attend the call-over if directions have been
complied with by the parties. In such an event the Registrar will note
compliance with the directions by the applicant, confirm the hearing date and
cause a notice to be forwarded to the parties advising as to:
(i) confirmation
of hearing date.
(ii) a further
warning to the respondent of the consequences of its failure to comply with
directions. [Note: the consequence for the respondent is, in
accordance with the Usual Direction under paragraph 10(vi), that it will not,
without leave of the Commission, be able to rely on written statements filed
and served later than the time specified in the Usual Directions at the time
the matter is set down for arbitration]
(e) In respect of
matters where there has been non-compliance with directions the parties will
be required to attend the call-over. If at the date of the compliance check
call-over there remains non-compliance, the Registrar may remit the
matter to a Presidential Member for consideration. The Presidential Member may:
(i) vacate the
hearing date.
(ii) make such
further directions in the matter as necessary including any direction that
further default by the applicant will result in the matter being dismissed; and
(iii) remit the
parties and the file to the List Office for action.
(iv) such other
directions and orders as may be appropriate.
8. Fixtures in
regional list
When a matter is conciliated and the conciliation is
unsuccessful, the usual directions in paragraph 10 of this Practice Directions
shall operate unless, after application by a party to the proceedings, the
Commission considers that the "usual directions" should be modified
or alternative directions made.
The Member shall also ascertain a reasonable estimate
of the number of days required for arbitration, specify in the Member's opinion
the number of days required for hearing and make any other appropriate
directions having regard to paragraphs 10 and 11 of this Practice Direction.
The Member shall then adjourn the matter to a date to
be fixed and remit the file to the relevant Registry officer for the purpose of
case management.
9. Further
Conciliation
The parties should attempt to resolve matters listed
for arbitration prior to the time for compliance with Directions in order to
minimise the costs to them. Even after
compliance with Directions, further timely attempts by the parties to resolve
matters are encouraged. To assist the
parties in circumstances where such settlement attempts are positive but
inconclusive a further conciliation conference may be requested with the
consent of the other side as soon as possible but not less than 14 days prior to
the arbitration. A party may make an
application for a further conciliation conference by consent of the other party
by writing to the Industrial Registrar and seeking the further conference
within the time specified. Nothing in this Practice Direction shall inhibit the
Commission from undertaking further conciliation at the hearing of the matter.
10. Usual
directions
For the purpose of this Practice Direction "usual
directions" shall mean directions in the following terms or to the
following effect:
(i) all evidence
shall be in the form of signed written statements.
(ii) the applicant
shall file and serve signed written statements (typed with numbered paragraphs
and pages) of the intended evidence of each witness together with any other
relevant documentation within 21 days.
(iii) the
respondent shall file and serve signed written statements (typed with numbered
paragraphs and pages) of the intended evidence of each witness together with
any other relevant documentation within 21 days of the date fixed for the
filing and service of the applicant's documents.
(iv) the applicant
shall file and serve any reply to the respondent's documents within 7 days of
the date fixed for the filing and service of the respondent's documents.
(v) the parties shall
include in or with their written witness statements all matters and documents
upon which they rely or they allege are relevant to the proceedings.
(vi) without leave
of the Commission, written statements and other documentation filed and served
later than the time specified by the Commission in its directions may not be
relied upon by the party.
(vii) Summonses for
production of documents may be made returnable before the Industrial Registrar
upon any date that the Registrar conducts a list. Where orders are sought other
than for photocopy access for both parties or if a claim for privilege or the
like is made, those matters will be referred by the Registrar to a Presidential
Member to be dealt with on an interlocutory basis. Under these arrangements
summonses will be returnable before the Registrar, not the Member.
11. Other
directions
The Commission may make such other directions as it
considers appropriate for the just resolution of the issues between the
parties. Such other directions may
include directions that:-
(i) parties shall
file and serve at the same time as they file their written statements and other
relevant documentation a short summary of their case.
(ii) proceedings
shall be conducted on the written statements and other relevant documentation
filed and served by a party except where reasonable notice is given to the
other party that a witness is required for cross examination.
(iii) in the
absence of any period of reasonable notice being fixed by the Commission,
cross-examination of a witness shall not be allowed unless at least 7 days
prior to the hearing notice has been given to the opposing party that a witness
is required for cross-examination.
12. Directions
Any directions made under paragraphs 6, 7, 8, 10 and 11
of this Practice Direction must be complied with and will apply from the
completion of the last conciliation conference unless:
(i) an
application is made after the completion of conciliation which will come before
a Presidential Member;
(ii) where
applicable, the direction is varied during the course of the hearing of the
matter;
(iii) any
application to vary directions after the conciliation conference must be made
in writing and contain full supporting grounds (unless made during the course
of the hearing of the matter).
13. Adjournments
(a) In accordance
with the Commission's function to provide a forum for the resolution of Unfair
Dismissal matters in a fair and prompt manner, as a general rule, an
adjournment of the date that is allocated for Conciliation will not be granted
unless there are clear and compelling reasons for the adjournment to
occur. If such an application is made
prior to the date for Conciliation, such application will be considered and
determined by the Member who has been allocated the matter.
(b) The day (or
days) in which the application will be dealt with by arbitration is
definite. Any applications for
adjournment of arbitration dates must be made in a timely way, be in writing
and contain full grounds. Such applications
will be considered and determined by a Presidential Member. It should be understood that adjournment
applications will be granted only on clear and compelling grounds.
(c) An application
for an adjournment during the course of a Conciliation or an Arbitration
hearing are a matter for the Member of the Commission hearing the matter in the
proper exercise of their discretion. It should be clearly understood that such
applications will be granted only on clear and compelling grounds.
(d) In the event
that a party fails to attend at an arbitration hearing, the arbitration may, in
appropriate circumstances, be heard and determined in the absence of that
party.
Dated: 21 December
2005
F. L. WRIGHT J,
President.
____________________
Printed by
the authority of the Industrial Registrar.