Federal Magistrates Court Amendment Rules 2009 (No. 2) (Australia)

Federal Magistrates Court Amendment Rules 2009 (No. 2)

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Federal Magistrates Court Amendment Rules 2009 (No. 2)1
Select Legislative Instrument 2009 No. 160
We, Federal Magistrates, make the following Rules of Court under the Federal Magistrates Act 1999.
Dated 24 June 2009
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Federal Magistrates
RICHARD FOSTER
Chief Executive Officer

1              Name of Rules
                These Rules are the Federal Magistrates Court Amendment Rules 2009 (No. 2).
2              Commencement
                These Rules commence on 1 July 2009.
3              Amendment of Federal Magistrates Court Rules 2001
                Schedule 1 amends the Federal Magistrates Court Rules 2001.
Schedule 1        Amendments
(rule 3)

[1]           Paragraph 4.05 (2) (b)
omit
points of claim.
insert
points of claim; or
[2]           After paragraph 4.05 (2) (b)
insert
                (c)    in an application filed in the Fair Work Division in accordance with rule 45.04, 45.06, 45.07, 45.08 or 45.12.
[3]           After Chapter 6
insert
Chapter 7    Fair Work Division
Part 45               Proceedings in the Fair Work Division
Division 45.1         General
45.01      Definitions for Part 45
                In this Part:
Building and Construction Industry Improvement Act means the Building and Construction Industry Improvement Act 2005.
Fair Work Act means the Fair Work Act 2009.
Workplace Relations Act means the Workplace Relations Act 1996.
45.02      Expressions used in the Workplace Relations Act, the Fair Work Act and the Building and Construction Industry Improvement Act
                Unless the contrary intention appears:
                (a)    an expression used in Division 45.2 and in the Workplace Relations Act has the same meaning in Division 45.2 as it has in the Workplace Relations Act; and
               (b)    an expression used in Divisions 45.3 and 45.4 and in the Fair Work Act has the same meaning in Divisions 45.3 and 45.4 as it has in the Fair Work Act; and
                (c)    an expression used in Division 45.5 and in the Building and Construction Industry Improvement Act has the same meaning in Division 45.5 as it has in the Building and Construction Industry Improvement Act.
45.03      Application of Part 45
         (1)   This Part applies to a proceeding in the Court to which the Workplace Relations Act, the Fair Work Act or the Building and Construction Industry Improvement Act applies.
         (2)   Chapters 1 and 3 apply, to the extent that they are relevant and not inconsistent with this Chapter, to a proceeding in the Court to which the Workplace Relations Act, the Fair Work Act or the Building and Construction Industry Improvement Act applies.
Division 45.2         Unlawful termination of employment (Workplace Relations Act)
45.04      Application in relation to alleged unlawful termination of employment (Workplace Relations Act)
         (1)   This rule applies to an application for an order in relation to an alleged unlawful termination of an employee’s employment which occurred before 1 July 2009.
Note   Item 11 of Schedule 2 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 provides that the Workplace Relations Act continues to apply, on and after the WR Act repeal day, to conduct that occurred before the WR Act repeal day. The WR Act repeal day is 1 July 2009.
         (2)   The application must be:
                (a)    in accordance with the approved form; and
               (b)    accompanied by:
                          (i)    a claim in accordance with the approved form; and
                         (ii)    a certificate issued under subsection 650 (2) of the Workplace Relations Act regarding the failure, or likely failure, of conciliation.
Note 1   Section 665 of the Workplace Relations Act sets out the orders the Court may make.
Note 2   Part 4 of Chapter 1 sets out the general rules concerning how to start proceedings.
Note 3   An application filed under this rule need not be accompanied by an affidavit, statement of claim or points of claim in accordance with rule 4.05.
45.05      Application in relation to other alleged contraventions of the Workplace Relations Act
                An application for an order in relation to an alleged contravention of the Workplace Relations Act which is not mentioned in rule 45.04 must be in accordance with the approved form.
Note   Part 4 of Chapter 1 sets out the general rules concerning how to start proceedings.
Division 45.3         Contraventions of the Fair Work Act
45.06      Application in relation to dismissal from employment in contravention of a general protection (Fair Work Act, s 539 (2), table, item 11)
                An application for an order in relation to an allegation that an employee was dismissed in contravention of a general protection mentioned in Part 3-1 of the Fair Work Act must:
                (a)    be in accordance with the approved form; and
               (b)    be accompanied by:
                          (i)    a claim in accordance with the approved form; and
                         (ii)    unless the application includes an application for an interim injunction, a certificate issued by Fair Work Australia under section 369 of the Fair Work Act that provides that Fair Work Australia is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.
Note 1   Sections 545 and 546 of the Fair Work Act state the orders the Court may make.
Note 2   Part 4 of Chapter 1 sets out the general rules concerning how to start proceedings.
Note 3   An application filed under this rule need not be accompanied by an affidavit, statement of claim or points of claim in accordance with rule 4.05.
45.07      Application in relation to alleged unlawful termination of employment (Fair Work Act, s 539 (2), table, item 35)
                An application for an order in relation to an alleged unlawful termination of an employee’s employment that occurred on or after 1 July 2009 must:
                (a)    be in accordance with the approved form; and
               (b)    be accompanied by:
                          (i)    a claim in accordance with the approved form; and
                         (ii)    unless the application includes an application for an interim injunction, a certificate issued by Fair Work Australia under section 777 of the Fair Work Act that provides that Fair Work Australia is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.
Note 1   Sections 545 and 546 of the Fair Work Act state the orders the Court may make.
Note 2   Part 4 of Chapter 1 sets out the general rules concerning how to start proceedings.
Note 3   An application filed under this rule need not be accompanied by an affidavit, statement of claim or points of claim in accordance with rule 4.05.
45.08      Application in relation to other alleged contraventions of Fair Work Act general protections
                An application for an order in relation to an alleged contravention, or an alleged proposed contravention, of a general protection mentioned in Part 3-1 of the Fair Work Act other than that mentioned in rule 45.06 must:
                (a)    be in accordance with the approved form; and
               (b)    be accompanied by a claim in accordance with the approved form.
Note 1   Sections 545 and 546 of the Fair Work Act state the orders the Court may make.
Note 2   Part 4 of Chapter 1 sets out the general rules concerning how to start proceedings.
Note 3   An application filed under this rule need not be accompanied by an affidavit, statement of claim or points of claim in accordance with rule 4.05.
45.09      Application in relation to other alleged contraventions of the Fair Work Act
                An application for an order in relation to an alleged contravention of the Fair Work Act which is not mentioned in rule 45.06, 45.07 or 45.08 must be in accordance with the approved form.
Note   Part 4 of Chapter 1 sets out the general rules concerning how to start proceedings.
Division 45.4         Small claims
45.10      Definitions for Division 4
                In this Division:
small claim means a claim mentioned in section 548 of the Fair Work Act.
small claim application means an application dealt with under this Division.
45.11      Small claims procedure
         (1)   An applicant may request that an application for compensation be dealt with under this Division if:
                (a)    the compensation is not more than $20 000; and
               (b)    the compensation is for an entitlement mentioned in subsection 548 (1A) of the Fair Work Act.
         (2)   The Court is not bound by the rules of evidence when dealing with a small claim application, but may inform itself of any matter in any manner as it thinks fit.
45.12      Starting proceedings
                A small claim application must:
                (a)    be in accordance with the approved form; and
               (b)    be accompanied by a claim in accordance with the approved form.
Note 1   Sections 545 and 548 of the Fair Work Act state the orders the Court may make.
Note 2   Part 4 of Chapter 1 sets out the general rules concerning how to start proceedings.
Note 3   An application filed under this rule need not be accompanied by an affidavit, statement of claim or points of claim in accordance with rule 4.05.
45.13      Lawyers
         (1)   A party to a small claims application may not be represented by a lawyer without the leave of the Court.
         (2)   If the Court grants a party leave to be represented by a lawyer, the leave may be given subject to conditions the Court considers appropriate to ensure that no other party to the proceedings is unfairly disadvantaged.
         (3)   For subrule (1), a party is not taken to be represented by a lawyer if the lawyer is an employee or officer of that party.
Division 45.5         Building and Construction Industry Improvement Act
45.14      Applications
                An application for an order in relation to an alleged contravention of section 38 of the Building and Construction Industry Improvement Act must be in accordance with the approved form.
Note   Part 4 of Chapter 1 sets out the general rules concerning how to start proceedings.
[4]           Schedule 3, Part 2
omit
· Order 48, Divisions 1 and 2
Note
1.       All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See http://www.frli.gov.au.