Australian Industrial Relations Commission Amendment Rules 2001 (No. 3) (Cth)

Australian Industrial Relations Commission Amendment Rules 2001 (No. 3)1

Statutory Rules 2001 No. 3322

I, GEOFFREY MICHAEL GIUDICE, President of the Australian Industrial Relations Commission, having consulted with the members of the Commission, make the following Rules under the Workplace Relations Act 1996.

Dated 14 December 2001

G. M. GIUDICE

President

1Name of Rules

 These Rules are the Australian Industrial Relations Commission Amendment Rules 2001 (No. 3).

2Commencement

 These Rules commence on gazettal.

3Amendment of Australian Industrial Relations Commission Rules 1998

Schedule 1 amends the Australian Industrial Relations Commission Rules 1998.

Schedule 1Amendments

(rule 3)

  

[1]Subrule 37 (4)

omit

why it would be unfair for the Commission not to accept the application.

insert

why the Commission should accept the application.

[2]Rule 38

substitute

38Notice of employer’s appearance

• (1)

  An application lodged under subrule 37 (1) is answered by the employer filing a notice of appearance in accordance with Form R21.

• (2)

  The notice of appearance:

  • (a)

    must be filed before the end of 7 days after service of the application on the employer by the Registry; and

  • (b)

    may be filed personally or by post or facsimile transmission.

• (2A)

  A motion to dismiss the application for want of jurisdiction:

  • (a)

    must be made in accordance with Form R21A; and

  • (b)

    is taken to be made on the date of filing.

• (3)

  After filing a notice of appearance and any motion for dismissal of the application, an employer must immediately give to the applicant personally, or by post or facsimile transmission, at his or her address for service, a copy of the notice and motion.

• (4)

  If possible, a Registrar must give a copy of the employer’s notice of appearance and any motion to the parties at the same time as the parties are first given notice under rule 41.

• (5)

  A notice that is not signed by the employer may be accepted if the notice is prepared by a solicitor, employer organisation or other representative of the employer. 

• (6)

  The Commission may permit an employer to appear (at any stage of a conciliation, arbitration or related proceeding under Subdivision B of Division 3 of Part VIA of the Act) despite the employer’s failure to file a notice of appearance.

[3]Subrules 43 (4) and (5)

omit

[4]Schedule, Form R18

substitute

Form R18Application for relief in relation to termination of employment

(rule 37)

Australian Industrial Relations Commission Application for relief in relation to termination of employment								Commission use only File number:
Workplace Relations Act 1996 (Commonwealth) Subsection 170CE (1)								Date received:
In making this claim you (the applicant) should be aware that: · specified categories of employees are not able to make or are excluded from making a claim under the Termination of Employment provisions of the Workplace Relations Act 1996. · an application must be lodged within 21 days after the day on which the termination took effect, or within such period as the Commission allows (see ss 170CE (7)). · section 170CJ of the Workplace Relations Act 1996 allows the Commission to make an order for costs in certain circumstances. · regulation 30BD of the Workplace Relations Regulations 1996 requires a fee of $50 to be paid on lodgment of this application with the Commission unless a Registrar is satisfied that the applicant will suffer serious hardship if he or she pays the fee. The $50 lodgment fee is refundable under certain circumstances (see subregulation 30BD (3)). Details in relation to these matters are available from the Industrial Registry.
Details of Employee (the applicant)
Mr¨ Mrs ¨ Miss ¨ Ms¨ 1 Full name			Family name:    Given names:
2 Home address			Postcode:
3 Phone or fax number(s)			business hours ( ) after hours ( ) facsimile ( )
4 Date of birth			day/month/year / /
5 First language			English  ¨ other ¨ (specify) Is an interpreter needed?  Yes ¨ No ¨ Is there a family member or friend who can assist you?  Yes ¨ No ¨
Details of Employer
6 Employer’s name    Contact person’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 Date when you first worked for employer			/ /
11 Date when you last worked for employer			/ /
12 Date termination of employment took effect			/ / State the date when you think the termination of employment took effect if the date is different from the date when you last worked.
Did you receive written notice of termination/ separation certificate?			¨ No ¨ Yes I attach a copy ¨
13 Qualifying period of employment			If you commenced employment on or after 30 August 2001, have you and your employer determined by written agreement the qualifying period of employment? (See section 170CE (5A) of the Workplace Relations Act 1996.) ¨ No ¨ Yes If yes, the qualifying period of employment determined by written agreement:   (a) began on (date):  / /      .   (b) ends/ended on (date):  / /      .
14 Other employment details (if known)			What is the name of the award or agreement (including Australian Workplace Agreement) under which you were employed immediately before the termination?   Is the award or agreement a State or Federal award? ¨ Federal ¨ State If State, name of State:
Extension of Time
15 This section must be completed if the application is lodged more than 21 days after the day on which the termination took effect (see item 12). In such cases, the Commission must decide whether to accept the application.  My reason/s for seeking an extension of time to lodge this application is/are: write here or attach document
Details of your representative or union
16 Is anyone representing you?					No ¨ go to item 20 /  Yes ¨ go to item 17
17 Name of legal firm, union or other representative
18 Name of contact person at legal firm, union or other representative
19 Contact details of legal firm, union or other representative					Postcode: Phone  (     ) Fax (     )
Notices from the Commission
20 Where do you want notices from the Commission to be sent?		Home address  ¨					Address of solicitor, union or other representative   ¨		Other address ¨ give details
Choose only one option
Grounds for application
21 Grounds upon which this application is based	Identify the ground or grounds under subsection 170CE (1) of the Workplace Relations Act 1996 upon which this application is based: ¨(a) on the ground that the termination was harsh, unjust or unreasonable; and/or (b) on the ground of an alleged contravention of: ¨ section 170CK (discrimination or other prohibited reasons); and/or ¨ section 170CL (failure to notify the CES of redundancies); and/or ¨ section 170CM (failure to give notice of termination); and/or ¨ section 170CN (failure to comply with a section 170FA order)
Relief sought
22 What are you seeking?	¨ reinstatement					¨ an amount in relation to the remuneration lost, or likely to have been lost, by you, because of the termination			¨ other -give details
23 Brief summary of reasons given by employer for the termination	Write here or attach document
Declaration
I declare that no proceedings in respect of the termination that is the subject of this claim have been commenced (other than proceedings that have since been discontinued or have failed for want of jurisdiction) by me or on my behalf under any other provision of the Workplace Relations Act 1996 or under any other law of the Commonwealth or of a State or Territory.   I further declare that all the facts in this application are correct and complete to the best of my knowledge and belief.
The employee must sign this declaration unless the application was prepared by a solicitor, union or other representative of the employee.				[signature of employee]   Date  / /
				[signature of solicitor, union or other representative]   Date                / /

If this application was prepared by a legal practitioner, has a contingency fee agreement (see section 170CIA) been entered into?  Yes ¨ No ¨

 

If this application was prepared by a representative other than a legal practitioner, has a costs arrangement (see section 170CIA) been entered into? Yes ¨ No ¨

 

See next page for lodgment fee details

 

U No

 _______________________

FeeRegulation 30BD of the Workplace Relations Regulations 1996 requires a fee of $50.00 to be paid on lodgment of this application with the Commission unless a Registrar has, in effect, approved the waiving of the fee (in which case a copy of the Registrar’s approval should accompany this application). If an application is lodged by facsimile transmission, credit card details must be provided for payment of the fee (if any).

¨cash

¨cheque/money order(to be made payable to Collector of Public Monies, Australian Industrial Registry)

¨Bankcard¨Visa¨Mastercard

• Card Number

  __ __ __ ____ __ __ ____ __ __ ____ __ __ __

• Card Expiry Date

  __ __ / __ __

• Cardholder’s Name

  ……………………………………………….......

• Signature

  ………………………………………………

   Any refund of the lodgement fee (see subregulation 30BD (3)) should be forwarded to the applicant at the following address:

   

  Suburb/town: Postcode:

Commission use only

 

Receipt Number: ........................................ / Credit Transaction

Processed: ..................................................

Note   A copy of this completed form (and any attachments) will be forwarded to your former employer.

PLEASE RETAIN A COPY OF THIS DOCUMENT FOR YOUR OWN RECORDS

[5]Schedule, Form R21

substitute

Form R21Notice of employer’s appearance — termination of employment

(rule 38)

Australian Industrial Relations Commission

Notice of Employer’s appearance — termination of employment

Workplace Relations Act 1996 (Commonwealth)

Section 170CE

Commission use only

File number:

Date received:

Please place a tick or cross, where necessary, in the boxes below.

Application details (as stated in Form R18)

Mr ¨ Mrs ¨ Ms ¨

Miss ¨

1 Full name

 

Family name:

 

Given names:

 

2 Commission Case/

File Number

U

Details of employer

3 Employer named on application

4 Has the applicant given the employer's correct name?

Yes

 ¨ No ¨

If no, correct name is

 

5 Employer’s address

 

Postcode:

6 Details of contact person

 

[first name] [family name]

Phone (

 )

Fax (

 )

Mobile

7 Employer’s details

¨ Company

ACN _______________

¨ Partnership

¨ Sole trader

¨ Government Authority

¨ Other (specify)

8 Was the employer named in item 3 or 4 above the employer of the applicant at the time of termination?

¨ Yes ¨ No

If no, what was the name and address of employer at time of termination?

9 Was the applicant employed under an award or agreement (including an Australian Workplace Agreement) immediately before the termination?

¨ Yes ¨ No

If yes, was it: Federal ¨ or State  ¨

 

If State, which State?

Details of employer’s representative

10 Is anyone representing the employer?

Yes

 ¨ go to item 11

No

 ¨ go to item 14

11 Name of solicitor, legal firm, employer organisation or other representative

12 Contact details of solicitor, legal firm, employer organisation or other representative

 

[first name] [family name]

Phone (

 )

Fax

 ( )

Mobile

13 Address of solicitor, legal firm, employer organisation or other representative

  

Postcode:

Address for notices

14 Where does the employer want notices to be sent?

Business address

 ¨

or address of solicitor, employer organisation or other representative ¨

Choose only one option

Reasons for termination

15 Brief summary of reason(s) given to employee for termination

Write here or attach document

    

Late lodgment objection (if applicable)

16 If the application was lodged in the Commission more than 21 days after the day on which the termination took effect, the Commission must decide whether to accept the application.

 If the application was lodged out of time, please indicate whether the employer objects to the Commission extending the time for lodgment.

¨ I object to the Commission extending the time for lodgment and also object to conciliation before determination of the application to extend time; OR

¨ I object to the Commission extending the time for lodgment but do not object to conciliation before determination of the application to extend time; OR

¨ I do not object to the Commission extending the time for lodgment.

Dismissal for want of jurisdiction (if applicable)

Note   If the employer intends to move for the dismissal of the application for want of jurisdiction, Form R21A must be completed and filed.

Examples

Examples of jurisdictional grounds on which an employer may move for the dismissal of the application (see sections 170CC and 170CE (5A) Workplace Relations Act 1996 and regulations 30B and 30BB Workplace Relations Regulations 1996) are as follows:

• •

  In the case of an employee who had commenced employment on or after 30 August 2001, the applicant had not completed the qualifying period of employment (see ss 170CE (5A)).

• •

  The applicant was engaged under a contract of employment for a specified period of time (see paragraph 30B (1) (a)).

• •

  The applicant was engaged under a contract of employment for a specified task (see paragraph 30B (1) (b)).

• •

  The applicant was serving a period of probation or a qualifying period of employment, the duration or maximum duration of which was determined in advance and was 3 months or less, or otherwise reasonable given the nature and circumstances of the employment (see paragraph 30B (1) (c)).

• •

  The applicant was a casual employee engaged by a particular employer for a short period.

• A casual employee is engaged by a particular employer for a short period if the occasions on which the employee works for that employer under that engagement occur within a period of less than 12 months

   (see subregulation 30B (3)).

• •

  The applicant was a trainee employed under a traineeship agreement or an approved traineeship for a specified period, or for the duration of the agreement (see paragraph 30B (1) (e)).

• •

  The applicant was not employed under award conditions and the applicant’s annual remuneration immediately before termination exceeded a specified rate ($75 200, July 2001) (see paragraph 30B (1) (f)).

• •

  The applicant is not covered by a federal award or agreement.

  (This may be a relevant objection only in NSW, Qld, WA, SA, Tas. This basis of objection is only applicable if the application is based on the ground that the termination was harsh, unjust or unreasonable.)

• •

  The employer is not a constitutional corporation.

   (This may be a relevant objection only in NSW, Qld, WA, SA, Tas. This ground of objection is applicable only if the application is based on the ground that the termination was harsh, unjust or unreasonable.)

Declaration

I declare that all the facts in this notice are correct and complete to the best of my knowledge and belief.

The employer must sign this declaration unless the application was prepared by a solicitor, employer organisation

or other representative of the employer.

[signature of employer]

 

Date

 / /

  

[signature of solicitor, employer organisation or other representative]

 

Date

               / /

 

If this notice was prepared by a legal practitioner, has a contingency fee agreement (see section 170CIA) been entered into?

   Yes ¨ No ¨

If this notice was prepared by a representative other than a legal practitioner, has a costs arrangement (see section 170CIA) been entered into?

 Yes ¨ No ¨

Note   This form must be lodged with the Commission within 7 days of receipt of the application (Form R18).  Immediately after lodging the form, the employer must give a copy of the form to the applicant personally, or by post or facsimile transmission, at his or her address for service.

 

PLEASE RETAIN A COPY OF THIS DOCUMENT FOR YOUR OWN RECORDS

[6]Schedule, after Form R21

insert

Form R21AMotion to dismiss the application for want of jurisdiction

(rule 38)

Australian Industrial Relations Commission

Motion to dismiss the application for want of jurisdiction

Workplace Relations Act 1996 (Cwlth)

Section 170CEA

Commission use only

File number:

Date received:

Dismissal for want of jurisdiction

Please place a tick or cross, where necessary, in the boxes below

¨

The respondent moves for the dismissal of the application for want of jurisdiction before the matter is referred for conciliation; OR

¨

The respondent moves for the dismissal of the application for want of jurisdiction but indicates that the motion may be dealt with after the matter is referred for conciliation; OR

¨

The respondent moves (not having previously so moved) for the dismissal of the application for want of jurisdiction as conciliation has not resulted in settlement of this matter; OR

¨

The respondent moves (having previously so moved) for the dismissal of the application for want of jurisdiction.

The respondent moves for the dismissal of the application on the following grounds:

Note   See Form R21 for some examples of jurisdictional grounds on which an employer may move for the dismissal of the application.

Documentation that will be relied on to substantiate the jurisdictional objection must accompany this Notice.

Declaration

I declare that all the facts in this notice are correct and complete to the best of my knowledge and belief.

The respondent must sign this notice unless a solicitor, legal firm, employer organisation or other representative has prepared the notice.

[signature of respondent]

 

Date

 / /

  

[signature of solicitor, legal firm, employer organisation or other representative]

 

Date

               / /

 

Note   A motion to dismiss the application for want of jurisdiction is deemed to be made on the date of filing. Immediately after filing the motion, the employer must give a copy of the motion to the applicant personally, or by post or facsimile transmission, at his or her address for service.

PLEASE RETAIN A COPY OF THIS DOCUMENT FOR YOUR OWN RECORDS

[7]Schedule, Form R22

substitute

Form R22Notice of representative’s appearance

(rule 39)

Workplace Relations Act 1996

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

NOTICE OF REPRESENTATIVE’S APPEARANCE

 

1. Title of Matter:

............………….....................................................................................

U No. ..............................................

 

2. Name of solicitor or other representative entering appearance*/ change of appearance*

……….....................................................................................................

 

3. Address for service of solicitor or representative

........................................................................................................…….

........................................................................................................…….

................................……….....…….............Facsimile:…......................

 

4. Appearance is entered on behalf of applicant*/respondent*.

 

5. I/We have been retained by the party under a costs arrangement or a contingency fee agreement ¨ Yes ¨ No

 

6. Signature of solicitor or representative....…...……........................

 

7. Date of this Notice ...............................………….…………….….

 

* Omit whichever is inapplicable.

Note   Immediately after filing the notice, a copy must be given to the other party at his or her address for service either personally, or by post or facsimile transmission.

[8]Schedule, Form R24

substitute

Form R24Certificate under section 170CF

(rule 44)

Workplace Relations Act 1996

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

 

CERTIFICATE STATING COMMISSION IS SATISFIED CONCILIATION UNSUCCESSFUL

(U No ..............................................)

[name of membe r]  [place and dat e]

 

An application for relief in respect of termination of employment has been lodged on the following ground or grounds:

 

¨ the termination was harsh, unjust or unreasonable

¨ an alleged contravention of section 170CK of the Act

¨ an alleged contravention of section 170CL of the Act

¨ an alleged contravention of section 170CM of the Act

¨ an alleged contravention of section 170CN of the Act

 

In accordance with subsection 170CF (2) of the Workplace Relations Act 1996, the Commission certifies that all reasonable attempts to settle the matter by conciliation have been, or are likely to be, unsuccessful in respect of the following ground or grounds:

 

¨ the termination was harsh, unjust or unreasonable

¨ an alleged contravention of section 170CK of the Act

¨ an alleged contravention of section 170CL of the Act

¨ an alleged contravention of section 170CM of the Act

¨ an alleged contravention of section 170CN of the Act

 

An assessment of the merits of the application has been indicated to the parties in the following terms:

[set out terms of assessment]

     

The Commission recommends that the applicant not pursue the application*

 

OR

 

Having regard to all the material before the Commission, the Commission concludes that the applicant has no reasonable prospect of success in relation to the ground that the termination was harsh, unjust or unreasonable.]*

 

* Omit if inapplicable

 

BY THE COMMISSION:

[Signature of membe r]

 

Member’s Title

Note   The applicant has 7 days from the date of this certificate within which to lodge a notice of election.

Notes

1. These Rules amend Statutory Rules 1998 No. 1, as amended by 1999 Nos. 1, 71 and 276; 2000 No. 170; 2001 Nos. 39 and 101.

2. Notified in the Commonwealth of Australia Gazette