Statutory Rules 1996 No. 11
__________________
Rules of the Australian Industrial Relations Commission2 (Amendment)
I, deirdre frances o’connor, President of the Australian Industrial Relations Commission, make the following Rules under the Industrial Relations Act 1988.
Dated 4 January 1996.
DEIRDRE O’CONNOR
President
____________
1. Commencement
1.1 These Rules commence on 15 January 1996.
2. Amendment
2.1 The Rules of the Australian Industrial Relations Commission are amended as set out in these Rules.
3. Rule 30S (Commission to conciliate in respect of unlawful termination)
3.1 Omit the rule.
4. New Rules 41 to 50
4.1 After Rule 40, insert:
“TERMINATION OF EMPLOYMENT
RULE 41 FORM OF APPLICATION
“(1) An application to the Commission under subsection 170EA (1) of the Act must be:
(a) in accordance with Form R28; and
(b) lodged in the Industrial Registry.
“(2) An application may be lodged personally, by post or facsimile transmission.
“(3) The application may be accepted for lodgment if, in the opinion of a Registrar, it complies substantially with subrule (1).
“(4) In spite of subrule (1), an application that is not signed by the employee may be accepted for lodgment if:
(a) the application is made by a trade union on behalf of the employee; or
(b) the application has been prepared by a solicitor or authorised representative of the employee.
“(5) If it is intended to make an application referred to in paragraph 170EA (3) (b) of the Act to allow the lodgment of an application under subsection 170EA (1) of the Act more than 14 days after the employee receives written notice of the termination, the application under subsection 170EA (1) must include a statement to that effect.
RULE 42 NOTICE OF EMPLOYER’S APPEARANCE
“(1) An application lodged under subrule 41 (1) is answered by the employer filing a notice of appearance in accordance with Form R29.
“(2) A notice of appearance must be filed within 7 days of service of the application on the employer by the Registry.
“(3) A notice of appearance may be filed personally, by post or facsimile transmission.
“(4) The notice may be accepted for filing if, in the opinion of a Registrar, it complies substantially with subrule (1).
“(5) A notice that is not signed by the employer may be accepted for filing if the notice has been prepared by:
(a) an employer organisation of which the employer is a member; or
(b) a solicitor or authorised representative of the employer.
“(6) At any stage of a conciliation or consent arbitration, or related proceedings, the Commission may permit an employer to appear notwithstanding the employer’s failure to file a notice of appearance.
RULE 43 ROLE OF REPRESENTATIVE
“(1) A person representing the employee must:
(a) promptly advise the employee of the importance of the employee being present in person at the conciliation proceeding; and
(b) have sufficient authority to deal with the matter on behalf of the employee.
“(2) A person representing the employer must:
(a) promptly advise the employer of the importance of the employer being present at the conciliation proceeding in person, or if the employer is an organisation, through a responsible officer of the organisation; and
(b) have sufficient authority to deal with the matter on behalf of the employer.
RULE 44 NOTICE OF CONCILIATION PROCEEDING
“(1) For the purposes of subsection 170EB (1) of the Act the Commission must fix a time and place for conciliation of the matter to which an application under section 170EA of the Act relates.
“(2) On the Commission fixing a time and place for the conciliation of the matter, a Registrar must give notice, as directed by the Commission, of the time and place so fixed to the parties to the conciliation proceeding.
“(3) The Commission may direct that additional documentation as it considers necessary must accompany the notice given under subrule (2).
“(4) Nothing in this rule prevents the Commission from conciliating a matter by means other than convening a conciliation conference.
RULE 45 SETTLEMENT BY CONCILIATION
“If a matter is settled by conciliation under subsection 170EB (1) of the Act, the Commission must require the parties to reduce the terms of settlement to writing, if it is practicable to do so.
RULE 46 DISCONTINUANCE OF MATTER
“(1) An employee may discontinue a matter at any time while the matter is before the Commission under section 170EA, 170EB, 170EC or 170ECA of the Act.
“(2) A matter is discontinued by filing a notice in accordance with Form R30.
“(3) A notice of discontinuance may be filed personally, by post or facsimile transmission.
“(4) If an employee does not attend the conciliation proceeding, the Commission, after giving the employee an opportunity to be heard, may deem the matter to have been discontinued by the applicant.
“(5) Any matter deemed to be discontinued under this rule may be restored for a conciliation proceeding only by application to a Presidential Member.
RULE 47 REFERRAL TO THE COURT
“If the Commission issues a certificate under subsection 170ED (1) of the Act:
(a) the Commission must give a copy of the certificate to each of the parties; and
(b) the Commission must give the certificate to a Registrar; and
(c) the Registrar must give the application to which the certificate relates to a Registrar of the Court, together with:
(i) the certificate; and
(ii) if a notice of employer’s appearance has been filed under rule 42—a copy of the notice.
RULE 48 NOTICE OF ELECTION OF CONSENT ARBITRATION
“(1) An election under subsection 170EB (2) or (3) of the Act by a party to a conciliation to have the matter to which the conciliation relates dealt with by consent arbitration must be in accordance with Form R31.
“(2) An election under subrule (1) may be filed:
(a) if the Commission has decided that the matter cannot be settled by conciliation, or further conciliation, within a reasonable period—within a period determined by the Commission (being a period of not more than 7 days after the Commission has invited the parties to elect to have the matter dealt with by consent arbitration); or
(b) in any other case—at any time during the conciliation of a matter.
“(3) A notice of election may be filed personally, by post or facsimile transmission.
RULE 49 REASONS FOR MAKING AN AWARD IN CONSENT ARBITRATION MAY BE OBTAINED
“(1) If the Commission makes an award under subsection 170EC (4) of the Act, a party to the consent arbitration may request, in writing, that the member of the Commission who made the award give to the party a statement of reasons for the award.
“(2) A request for a statement of reasons under subrule (1) must be made within 7 days after the date of the award.
RULE 50 APPEAL TO FULL BENCH FROM AN AWARD IN A CONSENT ARBITRATION
“(1) An appeal to a Full Bench under section 170ECA of the Act from an award must be instituted by lodging with a Registrar a notice of appeal and 4 copies of the notice, in accordance with Form R32, together with 3 copies of:
(a) the award; and
(b) the transcript of the evidence and argument in the proceedings from which the appeal is brought (if any); and
(c) each document that was an exhibit in the proceedings; and
(d) the statement of the reasons for the award (if any).
“(2) Subject to subrule (3), an appeal must be instituted within 28 days after the date of the award appealed from or, upon application, within such further time as is allowed by a Full Bench.
“(3) If a request for the statement of reasons has been made under Rule 49, an appeal must be instituted within 28 days after the date on which the statement of reasons is given.
“(4) An application to a Full Bench for leave to institute an appeal after the end of the period of 28 days specified in subrule (2) or (3), as the case may be, must be in accordance with Form R33.
“(5) If it is intended to seek a stay of the whole or part of the award pending the determination of the appeal, the notice of appeal must include an application to that effect.
“(6) On lodging the notice of appeal, the appellant must serve, as soon as practicable, a copy of the notice of appeal and documents lodged in accordance with subrule (1) on the other parties to the award.
“(7) On the Commission fixing a time and place for the hearing of the appeal, the Registrar must give notice of the time and place so fixed to the appellant and the other parties to the award.”.
5. Schedule
5.1 Add at the end:
“Australian Industrial Relations Commission
Commission use only
file
number
Application for relief in respect of termination of employment
date
received
Industrial Relations Act 1988 (Cth) section 170EA - form R28
application by the employee alone p union p - give name of union:
Details of employee
Mr p Mrs p Ms p
Family name given names
1 full name
2 home address
postcode
3 phone
(business hours) ( ) (after hours) ( )
facsimile ( )
4 date of birth
day/month/year
5 first language
English p other p (specify)
Is an interpreter needed? Yes p No p
Details of employment
6 employer’s name
7 employer’s trading address or registered office
postcode
phone ( ) fax ( )
8 work performed for employer
(occupation)
9 place of work
suburb/town postcode
10 period of employment
date started work last date worked
/ / / /
11 Were you given a
written notice of termination?
No p
Yes p - copy attached p
If yes, on what date did you receive written notice of your termination? / / .
Extension of time
This section to be completed if the application is made more than 14 days after receipt of written notice of termination. My reason/s for seeking an extension of time to lodge this application is/are: (or attached)
Details of union
12 Is your union acting on your behalf?
No p go to 15
Yes p go to 13
13 name and address of union
postcode
14 union contact person
phone ( ) fax ( )
Details of representative
15 Is anyone representing you?
No p go to 19 Yes p go to 16
16 name of solicitor’s firm
17 name of solicitor or of your authorised representative
18 address
postcode
phone ( ) fax ( )
Notices from the Commission
19 Where do you want notices from the Commission sent? (choose one only)
address in 2 p union in 13-14 p solicitor in 16-18 p
other p—give details
Remedy sought
20 What are you seeking?
reinstatement p compensation p
other p —give details
21 Brief summary of reason/s given for termination
(or attached)
Declaration
I declare that all the facts in this application are correct and complete to the best of my knowledge and belief.
If a union is applying on behalf of the employee, a union representative must sign here
I understand that the Commission arranges for the conciliation of the matter first. If the matter is settled by conciliation it will not be necessary to go to Court or to have the matter arbitrated by the Commission.
signature for union date
/ /
The employee must sign this declaration*
name (print) position
signature of employee date
/ /
If a solicitor or authorised representative has prepared the application, that person must sign here
*Note: The application need not be signed by the employee if the application is made by a trade union on the employee’s behalf or the application has been prepared by a solicitor or an authorised representative.
signature of solicitor or date
authorised representative
/ /
name (print) position
Commission use only
Ext Time:
Employer’s name amended:
Result:
_________________
“Australian Industrial Relations Commission
Application in respect of termination of employment— notice of employer’s appearance
Industrial Relations Act 1988 (Cth) section 170EA - form R29
Commission use only
date received
1 File number as on application
2 Employee’s full name
as on application
family name given names
Details of employer - named on the application
3 full name
4 Has the employee given your name correctly?
Yes p No p - it is as in (3)
5 address
6 contact person
- name
- phone
family name given names
( ) fax ( )
7 type
company p partnership p sole trader p
government authority p
cooperative p club p other p specify________
8 Are you the true employer?
Yes p No p - Who is? Give details
Details of representative
9 Is anyone representing you?
No p go to 14 Yes p-solicitorp
employer organisation p
10 name of solicitor’s firm or employer organisation
11 address
postcode
12 solicitor or contact person
13 phone
( ) fax ( )
Address for notices
14 Where do you want notices from the Commission sent? (choose one only)
address in 4-5p or address in 10-12 p
Reasons for termination
15 Brief summary of reason/s given for termination (or attached)
Declaration
I declare that all the facts in this notice are correct and complete to the best of my knowledge and belief.
employer p solicitor p
employer organisation p
signature date
/ /
name (print) position
__________
“FORM R30 Rule 46
Industrial Relations Act 1988
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
NOTICE OF DISCONTINUANCE
Commission Reference___________________
In the matter of ________________________________________ Applicant
( insert name of employee)
-and-
__________________________________________ Respondent
(insert name of employer)
The applicant wholly discontinues this matter.
Dated:__________________________
Signed: ___________________________________
(applicant/solicitor/authorised representative)
“FORM R31 Rule 48
Industrial Relations Act 1988
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
NOTICE OF ELECTION OF CONSENT ARBITRATION UNDER SUBSECTION 170EB (2) OR (3)
In the matter of (insert names of parties and the matter number)
*I/We, (insert name/s of party/parties to the matter)
being *a party/the parties to the abovementioned matter CONSENT TO HAVE THE MATTER DEALT WITH BY CONSENT ARBITRATION BY THE COMMISSION.
*I/We understand that the mutual consent of the parties to this matter to have the matter dealt with by consent arbitration by the Commission constitutes an agreement between the parties:
(a) to submit this matter to the process of consent arbitration by the Commission; and
(b) to comply with any requirement of the Commission for the purpose of the arbitration; and
(c) to comply with any award made by the Commission on the arbitration; and
(d) if that award is taken on appeal to a Full Bench of the Commission - to comply with the award as confirmed, varied or substituted on that appeal.
*I/We acknowledge that the consent arbitration of this matter must be conducted by a member of the Commission other than the member of the Commission who attempted to settle this matter by conciliation (“the conciliator”), unless the parties agree to the arbitration being conducted by the conciliator.#
................................................... ................................................
*name and signature of *name and signature
employee or of employer or
employee’s authorised employer’s authorised
representative representative
............................................................................
**name and signature of authorised officer of trade union and name of trade union
Dated: ..............................
#The following part of Form R31 is required to be completed only in the event that the parties are in agreement that the consent arbitration may be conducted by the conciliator.
*I/We AGREE that the consent arbitration of the abovementioned matter may be conducted by the conciliator.
................................................... ................................................
*name and signature of *name and signature
employee or of employer or
employee’s authorised employer’s authorised
representative representative
............................................................ Dated: .....................
**name and signature of authorised officer
of trade union and name of trade union
*If Form R31 is not jointly completed, each party must file a separate form.
**If a trade union has made the application under section 170EA of the Act on behalf of the employee, the notice of election must be signed by an authorised officer of the trade union.
“FORM R32 Rule 50
Industrial Relations Act 1988
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
NOTICE OF APPEAL UNDER SECTION 170ECA
IN the matter of: [insert the title of the matter and the case number of the matter appealed]
Notice of an appeal is given by [insert name of appellant] from the award made by [insert name of member of the Commission] at [place] on [date] in this matter.
The grounds of this appeal are as follows:
[Set out in numbered paragraphs the particulars on which the Commission was in error in deciding to make the award]
Dated 19 .
_______________________
Signature of appellant
Note: If it is intended to seek a stay of the whole or part of the award, pending the determination of the appeal, the notice of appeal must include an application to that effect, as set out below:
“Application is also made for an order that the operation of [set out the whole or part of the award] be stayed pending the determination of this appeal or until further order of the Commission.
Dated 19 .
__________________________
Signature of appellant
“FORM R33 Rule 50
Industrial Relations Act 1988
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
APPLICATION FOR AN EXTENSION OF TIME FOR
INSTITUTING AN APPEAL UNDER SECTION 170ECA
IN the matter of: [insert the title of the matter and case number of the matter appealed]
Application is made by [insert name of appellant] for an extension of time for instituting an appeal from the award made by [insert name of member of the Commission] at [place] on [date] in this matter.
The grounds of this application are as follows:
[Set out in numbered paragraphs the grounds on which it is claimed an extension of time should be granted]
Dated 19 .
__________________________
Signature of appellant”.
___________________________________________________________
NOTES
1. Notified in the Commonwealth of Australia Gazette on 12 January 1996.
2. Statutory Rules 1989 No. 46 as amended by 1992 No. 391; 1994 Nos. 80, 246 and 464; 1995 No. 284.
