INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
PRACTICE NOTE NO. 22
Pursuant to Section 185A of the Industrial Relations Act 1996,
Section 11 of the Transport Appeal Boards Act 1980 and Section 15 of the
Civil Procedure Act 2005
PROCEDURES BEFORE THE TRANSPORT APPEAL BOARDS
1. The Practice
Note applies to proceedings before the Transport Appeal Boards.
2. This Practice
Note shall come into force on 1 July 2010.
3. The purpose of this
Practice Note is to facilitate the resolution of matters before the Transport
Appeal Boards of New South Wales (the Board) by ensuring that such proceedings
are conducted in an efficient and expeditious manner and that all those who
appear before the Board do all they can to facilitate the just, quick and cost
effective disposal of proceedings before the Board.
PROMOTIONAL APPEALS
4. Procedure
generally
4.1 Unless the Board
otherwise orders, on good and sufficient reason, the hearing of a promotional
appeal is to be informal.
4.2 Informal
proceedings before the Board shall not be conducted in an adversarial manner.
4.3 The persons
entitled to be present at an informal proceeding are:
(a) the appellant
whose appeal is being heard,
(b) a person appointed
by the employer against whose decision the promotional appeal is brought, being
a person appointed generally or in respect of a particular appeal or class of
appeal,
(c) the employee in
whose favour the decision referred to in paragraph (b) has been made, and
(d) where, in the
opinion of the Board, the appeal requires the attendance of a person having
specialised knowledge of matters relevant to the appeal, a person nominated or
directed by the Board to appear.
4.4 A person
entitled to be present at an informal proceeding before the Board is not
entitled to be represented by any person.
4.5 A person who is
entitled to be present at an informal proceeding:
a) under clause
4.3(a) or (c) - may adduce, orally and in writing, to the Board such matters,
and address the Board on such matters, as are relevant to the appeal, and
b) under clause
4.3(b) or (d) - may adduce in writing to the Board such matters as are relevant
to the appeal and may, at the request of the Board, address the Board, otherwise
than in writing, on any matter, and
c) may produce
documents to the Board.
4.6 A person who is
entitled to be present at an informal proceeding cannot:
a) call or examine
any witness, or
b) cross-examine
any other such person.
4.7 Informal proceedings
of the Board are not to be recorded.
4.8 Despite the
provisions of clause 4.1, where a jurisdictional issue is raised in relation to
a promotional appeal, the hearing of such an issue shall determined by way of a
formal hearing (as provided for in clause 7) and the following standard
directions will apply:
a) the employer to
prepare and lodge a written case outlining the jurisdictional argument and
their reasons why they believe the Board cannot proceed to hear and determine
the promotional appeal,
b) such written
case is to be filed with the Registrar and served on the employees who are
parties to the case on a specified date, such date not being less than 7 days
prior to the date fixed for the hearing,
c) the appellant
to file submissions in response with the Board, such additional material must
be filed with the Registrar and served on the employer and the other parties to
the case on a specified date, such date not being less than 3 days prior to the
hearing.
5. Listing
5.1 Upon filing of a
promotional appeal the Secretary shall cause, within a period of not more than
seven days from the date when the time for lodging appeals appears to have
expired, a date to be fixed for the matter to be called over before the
Secretary.
5.2 At the call-over
the Secretary is to:
a) ascertain that
the employer, having made a decision to appoint or recommend the appointment of
a person or persons to fill a vacant office or position in the establishment of
the employer has:
i. notified all affected
employees of the employers decision to appoint or recommend the appointment of
a person or persons to fill a vacant office or position within the
establishment of the employer, and
ii. that the time
for filing an appeal under Section 13 of the Transport Appeal Boards Act 1980
for all affected employees has, in fact, expired.
(for the purpose of this sub-clause an ‘affected
employee’ is an employee who has a right of appeal under the Transport
Administration Staff (Regulation) 2005)
(b) list the matter
for informal hearing before the Board, and
(c) make the
following directions:
i. the employer
to prepare and lodge a written case outlining the selection process and the
reasons for the decision the subject of the appeal. The case must include a copy of the applications for appointment
to the position submitted by the appellant and the appointee. All documents are
to be numbered, tabulated and indexed.
ii. the written
case is to be filed with the Secretary and served on the employees who are parties
to the case on a specified date, such date not being less than 7 days prior to
the date fixed for the hearing,
iii. if the
appellant or appointee propose to file additional material with the Board, that
such additional material must be filed with the Secretary and served on the
employer and the other parties to the case on a specified date, such date not
being less than 3 days prior to the hearing.
6. Informal
Hearing
6.1 The procedure
for the hearing of a promotional appeal is a matter for the Board to determine
as the presiding member thinks fit, however, as a general rule the following
procedure will be followed:
a) The presiding
member will briefly outline the procedure to be followed and will formally
admit into evidence the Employer's Case and any other additional material filed
by the appellant or appointee.
b) The person
representing the employer (generally, the Convenor or a member of the Section
Committee) is a resource to the Board and is not an advocate for any party to
the appeal. The Board will look to that person to clarify any matter of fact
that may be subject to dispute that arises during the hearing.
c) The appellant
will be called to address the Board as to his/her grounds of appeal and
substantiate their claim for having greater merit for appointment to the
position. On completion the Board may ask questions of the appellant.
d) The appointee
will then be given the opportunity to respond to the appellant’s ground of
appeal and present his/her case. On completion the Board may ask questions of
the appointee.
e) The appellant
will then be given the right of reply. On completion the Commission may ask
further questions of the appellant.
f) The presiding
member may then ask questions of or seek clarification from the person representing
the employer.
g) Where, pursuant
to clause 4.3(d) the Board has nominated or directed that a person with
specialised knowledge appear, the Board may ask questions or seek clarification
of that person.
h) The appellant
or the appointee may be given the opportunity to respond to any new
matter raised by the appointee or appellant respectively and will be given an
opportunity to respond to any matter put to the Board by the person
representing the employer or, where applicable, of a person with specialised
knowledge who has been nominated or directed to appear by the Board.
6.2 At the
conclusion of the hearing the Board will make an order that the parties to the
appeal are to return any documents received from another party to that other
party, including the documents prepared by the employer.
DISCIPLINARY APPEALS
7. Procedure
generally
7.1 The hearing of a
disciplinary appeal is to be formal.
7.2 A person who is
entitled to be present at a formal hearing of the Board is:
a) the appellant
whose appeal is being heard
b) the employer,
either in person or by their nominee,
and is entitled to representation in accordance with
Section 166 of the Industrial Relations Act 1996.
7.3 In relation to
the production of documents or the attendance of witnesses before the Board the
provisions of Section 165 of the Industrial Relations Act 1996 and Part
33 of the Uniform Civil Procedure Rules 2005 apply.
7.4 A formal hearing
of the Board is to be recorded.
7.5 In accordance
with section 16 of the Transport Appeal Boards Act 1980 the employer's
case is to be presented first.
7.6 Except as may be
otherwise determined by the presiding member, the documentary material provided
by the parties will be examined by the Board prior to the hearing and admitted
into evidence at the commencement of the hearing.
8. Allocation
of Listing Date
8.1 Upon filing of a
disciplinary appeal the Secretary shall cause, within a period of not more than
seven days from the date when the time for lodging an appeal has expired, a
date to be fixed for the matter to be conciliated by the Board and notify the
parties accordingly. The standard or usual time to the first listing for
Conciliation and Directions shall be a period of 21 days from the final date
available for the filing of an appeal.
8.2 The employer
will cause, not later than 7 days before the first listing, to be lodged with
the Board and a copy served on the appellant, if this has not already occurred,
a copy of their written case and relevant documents.
9. Conciliation
9.1 Parties who
appear before the Board should do all they can to facilitate the fair and
prompt disposal of matters before the Board. Ways in which this should occur
include:
a) ready
identification of the issues in dispute,
b) ensuring readiness
for the conciliation hearing,
c) using their
best endeavours to resolve the issues in dispute.
9.2 Ordinarily there
should be only one conciliation; however, the Board may permit a further
conciliation.
9.3 If the appellant
fails to appear at a conciliation conference, and has not provided a clear and
compelling reason for non-attendance, this may result in the appeal being
dismissed.
9.4 If the
conciliation is not successful any objection by a party to the member who
conducted the conciliation sitting as the Board for the purpose of hearing the
appeal must be lodged within 7 days of the date of such conciliation.
9.5 For the purposes
of this clause, a member sitting as the Board is not taken to have attempted
conciliation merely because:
a) the member
attempted conciliation after commencing the hearing; or
b) the member
arranged or gave directions for a conference of the parties involved in the
matter, or their representatives, to be presided over by the member, but the
conference did not take place or was not presided over by the member; or
c) the member
arranged or gave directions for those parties or their representative to confer
among themselves at a conference at which the member was not present.
10. Preliminary
issues
10.1 If a preliminary
issue for example, a jurisdictional challenge is raised at the conciliation
conference, the Board shall determine whether the matter shall be heard as a
threshold issue or be dealt with after conciliation.
10.2 If the Board
determines that the issue should be heard before conciliation then the Board
shall make appropriate directions and list the matter for determination.
10.3 In cases where
the Member conducts conciliation and the conciliation fails, the Member shall
then forward the matter to the Secretary for allocation to another member of
the Board for hearing of the threshold issue.
10.4 Directions will
be made by the Board which may be a modified form of the usual directions if
the matter is to be set down to hear a threshold issue.
10.5 The Secretary
will subsequently advise the parties of a date or dates for hearing and the
court location for the hearing of the matter.
11. Listed for
Hearing
11.1 When conciliation
before the Board is unsuccessful, the usual directions in Paragraph 12 of this
Practice Note shall operate unless, after application by a party to the appeal,
the Board considers that the "usual directions" should be modified or
alternative directions made.
11.2 The Board shall
also ascertain a reasonable estimate of the time required for the hearing of
the appeal, specify in the Board's opinion the time required for hearing and
make any other appropriate directions having regard to paragraphs 12 and 13 of
this Practice Note.
11.3 The Board shall,
forthwith, refer the parties to the List Office of the Industrial Registry for
the purpose of obtaining a hearing date(s) in accordance with the Board's
opinion of the amount of time required for hearing and directions which are
made.
12. Usual
Directions
For the purpose of this Practice Note "usual
directions" shall mean directions in the following terms or to the
following effect:-
12.1 All evidence
shall be in the form of signed written statements.
12.2 The respondent
shall file and serve any material relevant to the employer’s case (in addition
to that previously served on the appellant pursuant to clause 8.2) upon which
they will seek to rely within 21 days. Where the employer has not previously
filed the Investigation Report that should comprise part of the additional
documentation filed by the employer. The respondent's case shall include all
signed written statements (typed with numbered paragraphs and pages) of the
intended evidence of each witness upon which they rely.
12.3 The appellant
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 respondent’s additional documents.
12.4 The respondent
may file and serve any reply to the appellant's documents within 7 days of the
date fixed for the filing and service of the appellant's documents.
12.5 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.
12.6 Parties shall
file and serve at the same time as they file their written statements and any
other relevant documentation - a short summary of their case.
12.7 Without leave of
the Board, written statements and other documentation filed and served later
than the time specified by the Board in its directions may not be relied upon
by the party.
12.8 At the conclusion
of any failed conciliation, the Board shall determine any issues of leave
having regard to the provisions of Part 7.3 of the Uniform Civil Procedure
Rules 2005 (Issue of summons in certain circumstances requires leave) and
make such directions as are necessary in that regard.
12.9 Summonses for
production of documents may be made returnable before the Secretary upon any
date that the Secretary 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 Secretary to the Board to be dealt
with on an interlocutory basis. Under these arrangements summonses will be
returnable before the Secretary, not the Board.
12.10 If, in the opinion
of the Commission, the appeal is a matter that requires attendance by a person
with specialised knowledge of issues relevant to the disciplinary appeal, make
such directions as are necessary in that respect or, alternatively, apply such
provisions of Practice Note 21 as may be appropriate to the proceedings.
13. Other
Directions
13.1 The Board may
make such other directions as it considers appropriate for the just resolution
of the issues between the parties.
13.2 Such other
directions may include directions that:-
a) Without leave of
the Board, a party cannot rely on any matter that is not contained within the
documentation filed and served by that party.
b) 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
c) In the absence
of any period of reasonable notice being fixed by the Board, 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.
14. Compliance
with Directions
14.1 Any directions
made under paragraphs 5,8,12 & 13 of this Practice Note must be
complied with and will apply unless:
(a) an application
is made after the completion of conciliation;
(b) where
applicable, the direction is varied during the course of the hearing of the
matter;
(c) 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).
15. Adjournment
Policy - Promotional and Disciplinary proceedings
15.1 In accordance
with the Board's function to provide a forum for the resolution of Appeal
matters in a fair and prompt manner, as a general rule, an adjournment of the
date that is allocated for Conciliation or Hearing, whether informal or formal,
will not be granted unless there are clear and compelling reasons for
the adjournment to occur.
15.2 The time fixed
for the hearing of the appeal is definite. Any applications for adjournment of
must be made in a timely way, be in writing and contain full grounds. Such
applications will be considered and determined by the Board. It should be
understood that adjournment applications will be granted only on clear and
compelling grounds.
15.3 An application
for an adjournment during the course of an Appeal is a matter for the Board
hearing the matter in the proper exercise of his/her discretion. It should be clearly understood that such
applications will be granted only on clear and compelling grounds.
15.4 In the event that
a party fails to attend at an appeal hearing, the appeal may, in appropriate
circumstances, be heard and determined in the absence of that party.
16. Lodgement of
Appeal - Promotional or Disciplinary
16.1 A Notice of
Appeal may be lodged personally or by post or by facsimile.
R. P. Boland J, President
30 June 2010
____________________
Printed by the
authority of the Industrial Registrar.