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FAIR WORK ACT 2009 - SECT 548

Plaintiffs may choose small claims procedure

             (1)  Proceedings are to be dealt with as small claims proceedings under this section if:

                     (a)  a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Circuit and Family Court of Australia (Division 2); and

                     (b)  the order relates to an amount referred to in subsection (1A); and

                     (c)  the person indicates, in a manner prescribed by the regulations or by the rules of the court, that he or she wants the small claims procedure to apply to the proceedings.

          (1A)  The amounts are as follows:

                     (a)  an amount that an employer was required to pay to, or on behalf of, an employee:

                              (i)  under this Act or a fair work instrument; or

                             (ii)  because of a safety net contractual entitlement; or

                            (iii)  because of an entitlement of the employee arising under subsection 542(1);

                     (b)  an amount that an outworker entity was required to pay to, or on behalf of, an outworker under a modern award.

          (1B)  Proceedings are also to be dealt with as small claims proceedings under this section if:

                     (a)  a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Circuit and Family Court of Australia (Division 2) in connection with a dispute relating to one or more of the following matters:

                              (i)  whether a casual employee meets the requirements of either or both of paragraphs 66B(1)(a) and (b);

                             (ii)  whether an employer of a casual employee has reasonable grounds under section 66C not to make an offer to the employee to convert to full-time or part-time employment under section 66B;

                            (iii)  whether a casual employee may make a request of an employer to convert to full-time or part-time employment under section 66F;

                            (iv)  whether an employer of a casual employee has reasonable grounds under section 66H to refuse a request from the employee made under section 66F; and

                     (b)  the person applying for the order indicates, in a manner prescribed by the regulations or by the rules of the court, that he or she wants the small claims procedure to apply to the proceedings.

Note:          Orders that a court may make under Division 2 in relation to small claims proceedings may include the following:

(a)    requiring an employer of a casual employee to consider whether the employer must make an offer under section 66B to convert the casual employee to part-time or full-time employment on the basis that the employee meets the requirements of paragraphs 66B(1)(a) and (b);

(b)    requiring an employer of a casual employee to consider whether the employer must grant a request made under section 66F to convert the casual employee to part-time or full-time employment on the basis that the employee meets the requirements of subsection 66F(1);

(c)    preventing an employer from relying on a particular ground under section 66C to not make such an offer, or a particular ground under section 66H to refuse such a request.

Limits on award

             (2)  In small claims proceedings, the court may not award more than:

                     (a)  $20,000; or

                     (b)  if a higher amount is prescribed by the regulations--that higher amount.

Procedure

             (3)  In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act:

                     (a)  in an informal manner; and

                     (b)  without regard to legal forms and technicalities.

             (4)  At any stage of the small claims proceedings, the court may amend the papers commencing the proceedings if sufficient notice is given to any party adversely affected by the amendment.

Legal representation

             (5)  A party to small claims proceedings may be represented in the proceedings by a lawyer only with the leave of the court.

             (6)  If the court grants leave for a party to the proceedings to be represented by a lawyer, the court may, if it considers appropriate, do so subject to conditions designed to ensure that no other party is unfairly disadvantaged.

             (7)  For the purposes of this section, a person is taken not to be represented by a lawyer if the lawyer is an employee or officer of the person.

Representation by an industrial association

             (8)  The regulations may provide for a party to small claims proceedings to be represented in the proceedings, in specified circumstances, by an official of an industrial association.

             (9)  However, if small claims proceedings are heard in a court of a State, the regulations may so provide only if the law of the State allows a party to be represented in that court in those circumstances by officials of bodies representing interests related to the matters in dispute.



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