Commonwealth Numbered Regulations - Explanatory Statements

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RULES OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION (AMENDMENT) 1996 NO.1

Statutory Rules 1996 No. 1

Amendment of the Rules of the Australian Industrial Relations Commission

(Issued by the Authority of the President of the Australian Industrial Relations Commission)

Section 48 of the Industrial Relations Act 1988 (the Act) authorises the making of the rules of the Australian Industrial Relations Commission (the Commission).

Under subsection 48(1) of the Act the President of the Commission by signed instrument, after consultation with members of the Commission, may make rules, not inconsistent with the Act, with respect to:

(a)       the practice and procedure to be followed in the Commission; or

(b)       the conduct of business in the Commission;

and, in particular:

(c) the manner in which, and the time within which, applications, submissions and objections may be made to the Commission; and

(d)       the manner in which applications, submissions and objections may be dealt with by the Commission.

Moreover, subsection 4(1) of the Act states:

"'prescribed' includes prescribed by Rules of the Commission made under section 48;"

A number of amendments. mainly in the form of additional Rules, are necessary to reflect the revised procedures for making application for a remedy for alleged unlawful termination of employment inserted in the Act by the Industrial Relations and Other Legislation Amendment Act 1995 (the Amending Act).

The President of the Commission, after consultation with members of the Commission, has made amendments to the Rules to the following, effect..

Rule 1 provides for the commencement of the amending Rules.

Rule 2 provides for the amendment to the Rules.

Rule 3 omits Rule 305, which is no longer necessary in its present form. The substantial part of Rule 30S which is to continue under the amending Rules is reproduced in modified form at new Rules 45 and 47. respectively.

Rule 1 inserts new Rules 41 to 50, headed "Termination of Employment".

Rule 41 regulates the procedure for making an application alleging unlawful termination of employment under section 170EA of the Act.

Subrule 41(1) requires an application to be made in accordance with Form R28 (see Schedule) and to be lodged in the Industrial Registry.

Subrule 41(2) provides that an application may be lodged personally, by post or facsimile transmission.

Subrule 41(3) provides that an application may be accepted for lodgment if, in the opinion of a Registrar, It complies substantially with subrule (1).

Subrule 41(4) provides that an application the is not signed by the employee may be accepted for lodgment if the application is made by a trade union on behalf of the employee or the application has been prepared by a solicitor or authorised representative of the employee.

Subrule 41(5) requires an application lodged more than 14 days after the employee receives written notice of the termination to include a statement to the effect that an application will be made to allow a laic date for the lodgement of the application.

Rule 42 regulates the procedure for the filing of a notice of appearance by the respondent employer.

Subrule 42(1) requires a notice of appearance to be made in accordance with Form R29 (see Schedule).

Subrule 42(2) requires a notice of appearance to be filed within 7 days of service of the application on the employer by the Registry.

Subrule 42(3) provides that a notice of appearance may be filed personally, by post or facsimile transmission.

Subrule 42(4) provides that a notice may be accepted for filing if, in the opinion of a Registrar, it complies substantially with subrule (1).

Subrule 42(5) provides that a notice of appearance that is not signed by the employer may be accepted for filing if the notice has been prepared by an employer organisation of which the employer is a member or a solicitor or authorised representative of the employer.

Subrule 42(6) provides that the Commission may permit an employer to appear at any stage of a conciliation or consent arbitration or related proceedings, notwithstanding the employer's failure to file a notice of appearance.

Rule 43 regulates the role of representatives of employees and employers, respectively, in conciliation proceedings.

Rule 44 regulates the procedure under subsection 170EB(1) of the Act for the convening of a conciliation conference between the parties to a matter.

Subrule 44(1) provides that the Commission must fix a time and place for conciliating a matter lodged under section 170EA of the Act.

Subrule 44(2) provides that a Registrar must give notice of the time and place so fixed to the parties to a conciliation proceeding.

Subrule 44(3) provides that the Commission may direct that additional documentation as it considers necessary accompany the notice given under subrule (2).

Subrule 44(4) provides that the Commission may effect the conciliation of a matter by means other than the convening of a conference between the parties.

Rule 45 provides that the Commission requires the parties to reduce the terms of settlement to writing where it is practicable to do so.

Rule 46 provides a procedure for the discontinuance of a matter that is before the Commission under sections 170EA, 170EB, 170EC or 170ED of the Act.

Subrule 46(1) provides that a matter may be discontinued at any lime while the matter is before the Commission under sections 170EA, 170EB, 170BC or 170ED of the Act.

Subrule 46(2) requires a notice of discontinuance to be in accordance with Form R30.

Subrule 46(3) provides that a notice of discontinuance may be filed personally, by post or facsimile transmission.

Subrule 46(4) provides that where an employee does not attend the conciliation proceeding, the Commission, after giving the employee an opportunity to be heard, may deem a matter to have been discontinued.

Subrule 46(5) provides that any matter deemed to be discontinued May be restored for a conciliation proceeding by application to a Presidential Member.

Rule 47 regulates the procedure for referring matters to the Industrial Relations Court of Australia, being those matters where the Commission has issued a certificate under subsection 170ED(1) to the effect that the Commission has been unable to settle the matter by conciliation, and the parties have not elected to have the matter dealt with by consent arbitration.

Rule 48 regulates the procedure for the parties to a conciliation proceeding to cleat to have the matter dealt with by consent arbitration.

Subrule 48(1) provides that an election to have the matter dealt with by consent arbitration under subsection 170EB(2) or (3) of the Act must be in accordance with Form R31.

Subrule 48(2) provides that an election by a party to have the matter dealt with by consent arbitration may be filed not more than 7 days after the Commission has invited the parties to elect to have the matter dealt with by consent arbitration, or during the conciliation of a matter.

Subrule 48(3) provides that a notice of election may be filed personally by post or facsimile transmission.

Rule 49 regulates the procedure for a party to a consent arbitration to obtain a statement of reasons for the making an award under subsection 170EC(4) of the Act.

Rule 50 regulates the procedure for instituting an appeal to a Full Bench under section 170ECA of the Act, against an award made in a consent arbitration.

Subrule 50(1) provides that an appeal under section 170ECA of the Act be in accordance with Form R32 (see Schedule), and specifies the documentation required to accompany the Form.

Subrule 50(2) prescribes the general time period for instituting an appeal under section 170ECA of the Act.

Subrule 50(3) prescribes the time period for instituting an appeal where a party has requested a statement of reasons under Rule 49.

Subrule 50(4) provides that an application for an extension of time for instituting m appeal under section 170ECA of the Act, be in accordance. with Form R33 (sec Schedule).

Subrule 50(5) requires an appellant intending to sock a ray of an award made under consent arbitration to include an application for a stay in the notice of appeal,

Subrule 50(6) regulates the manner of service of the appeal documents by the appellant on the other party.

Subrule 50(7) regulates the manner of giving notice of time and place of hearing of the appeal.

Rule 5 amends the Schedule of the Rules to insert six new Forms as a consequence of amendments made to the Act.

Form R28 prescribes the from for making application for relief in respect of termination of employment under section 170FA of the Act, referred to in subrule 41(1).

Form R29 prescribes the notice of employer's appearance referred to in subrule 42(1),

Form R30 prescribes the notice of discontinuance referred to in subrule 46(2).

Form R31 prescribes the notice of election of consent arbitration under section 170EB of the 'Act, referred to in subrule 48(1).

Form R32 prescribes the notice of appeal under section 170ECA of the Act. referred to in subrule

Form R33 prescribes the notice for an extension of time for instituting an appeal under section 170ECA of the Act, referred to in subrule 50(4).