Rules of the Australian Industrial Relations Commission (Amendment) (Cth)

Statutory Rules 1992

No. 391 1

__________________

Rules of the Australian Industrial Relations Commission 2(Amendment)

I, BARRY JAMES MADDERN, President of the Australian Industrial Relations Commission, make the following Rules under the Industrial Relations Act 1988.

 Dated 4 December 1992.

Barry j. maddern

President

____________

1.  Amendment

1.1  The Rules of the Australian Industrial Relations Commission are amended as set out in these Rules.

[NOTE: These Rules commence on gazettal: see Acts Interpretation Act 1901, ss. 46a and 48]

2.   New Rule 2a

2.1   After rule 2, insert:

RULE 2a INTERPRETATION

 “In these Rules, unless the contrary intention appears:

 ‘Act’ means the Industrial Relations Act 1988;

 ‘Regulations’ means the Industrial Relations Regulations.”.

3.   Rule 4 (Forms)

3.1   Subrule 4 (1):

Omit “shall”, substitute “must”.

3.2  After subrule 4 (1), insert:

 “(1a) An application for which no form is provided within the Regulations or these Rules must set out the name of the applicant, the nature of the matter and the grounds on which the application is made and must be lodged in the Industrial Registry.”.

4.   Rule 7 (Commission acting on own motion)

4.1   Omit the rule, substitute:

RULE 7 COMMISSION ACTING ON OWN MOTION

• “(1)

  If the Commission acts on its own motion under section 33 of the Act, the Commission must notify a Registrar in writing. A Registrar must process the matter as if it were an application under section 113 of the Act.

• “(2)

  If a Full Bench acts on its own initiative under paragraph 134m (2) (a) of the Act, the Commission must notify a Registrar in writing. A Registrar must process the matter as if it were an application under paragraph 134m (2) (b) of the Act.”.

5.   Rule 8 (President to designate Presidential Members)

5.1   Omit the rule, substitute:

RULE 8 ASSIGNMENT OF INDUSTRIES AND MEMBERS

• “(1)

  If the President has assigned an industry to a panel of members of the Commission under section 37 of the Act, the President must record such an assignment in writing which must be kept by the Industrial Registrar.

• “(2)

  If the President has assigned a Presidential Member to the Vice President’s Panel under section 38 of the Act, the President must record such an assignment in writing which must be kept by the Industrial Registrar.”.

6.   Rule 10 (Appeals to Full Bench)

6.1   Subrule 10 (1):

Omit “shall”, substitute “must”.

6.2   Paragraph 10 (1) (a):

Omit “or decision”, substitute “, decision or opinion”.

6.3   Paragraph 10 (1) (d):

Omit “or decision.”, substitute “, decision or opinion.”.

6.4   Subrule 10 (2):

Omit the rule, substitute:

• “(2)

  An appeal must be instituted within 21 days after the date of the award, order, decision or opinion appealed against or, upon application, within such further time as is allowed by a Full Bench.

 “(2a) An application to a Full Bench for leave to institute an appeal after the 21 days specified in subrule (2) must be in accordance with Form R1A.”.

6.5   Subrule 10 (3):

Omit “should”, substitute “must”.

6.6   Subrule 10 (4):

Omit the subrule, substitute:

• “(4)

  On lodging notice of appeal, the appellant must as soon as practicable serve:

  • (a)

    a copy of the notice of appeal and documents lodged in accordance with subrule (1) on the other parties and interveners in the proceedings from which the appeal is brought; and

  • (b)

    a copy of the notice of appeal on the Minister.”.

6.7   Subrule 10 (5):

Omit “Upon the presiding member of the Full Bench”, substitute “On the Commission”.

6.8   Subrule 10 (5):

Omit “shall”, substitute “must”.

6.9   Paragraph 10 (5) (c):

Omit “presiding member”, substitute “Commission”.

7.   Rule 11 (References by Registrar)

7.1   Omit “Where”, substitute “If”.

7.2   Omit “constituted as provided by subsection 79 (3) of the Act shall”, substitute “must”.

8.   Rule 12 (Appeals from Registrar)

8.1   Subrule 12 (1):

Omit “shall”, substitute “must”.

8.2   Subrule 12 (2):

Omit “shall”, substitute “must”.

8.3   Subrule 12 (3):

Omit “should”, substitute “must”.

8.4   Subrule 12 (4):

Omit the subrule, substitute:

• “(4)

  On lodging notice of appeal, the appellant must as soon as practicable serve copies on the other parties and interveners in the proceedings from which the appeal is brought.”.

8.5   Subrule 12 (5):

Omit “Upon”, substitute “On”.

8.6   Subrule 12 (5):

Omit “shall”, substitute “must”.

8.7   Subrule 12 (7):

Omit the subrule.

9.   Rule 15 (Notification of a demarcation dispute)

9.1   Omit the rule, substitute:

RULE 15 APPLICATION FOR ORDERS IN RELATION TO ORGANISATION COVERAGE

• “(1)

  An application under section 118a of the Act must be in accordance with Form R3A.

• “(2)

  The applicant must serve a copy of the application on the organisations and persons which may have an interest in the matter.

• “(3)

  On the Commission fixing a time and place for the hearing of the application, a Registrar must give notice of the time and place so fixed to such organisations and persons as the Commission directs.”.

10.   Rule 16 (Notice of hearing of dispute)

10.1   Subrule 16 (1):

Omit “a member of the Commission, or by the presiding member where the dispute is before a Full Bench”, substitute “the Commission”.

10.2   Subrule 16 (1):

Omit “shall”, substitute “must”.

10.3   Subrule 16 (2):

Omit “Where”, substitute “If”.

10.4   Subrule 16 (2):

Omit “shall”, substitute “must”.

10.5   Subrule 16 (3):

Omit “Where”, substitute “If”.

10.6   Subrule 16 (3):

Omit “shall”, substitute “must”.

10.7   Subrule 16 (4):

Omit “shall”, substitute “must”.

10.8   Subrule 16 (4):

Omit “under section 107 or section 109 of the Act”, substitute “by a Full Bench”.

11.   New rule 21a

11.1   After rule 21, insert:

RULE 21a APPLICATION TO REVIEW A CONTRACT

• “(1)

  An application under section 127a of the Act to review a contract must be in accordance with Form R5 and accompanied by a copy of the contract where the contract is in writing and in the possession or control of the applicant.

• “(2)

  If the applicant is an organisation or association, a copy of the written consent given by its member is to accompany the application.

• “(3)

  The applicant must serve a copy of the application on each other party to the contract.

• “(4)

  When the time and place for hearing the application has been fixed by the Commission, a Registrar must furnish to the applicant a copy of the notice of the hearing for the purpose of service.

• “(5)

  The applicant must serve a copy of the notice of hearing on each other party to the contract.

• “(6)

  In addition to the persons referred to in this rule, a Registrar must give notice of the hearing of an application to the Minister where the application is being dealt with by a Full Bench.”.

12.  Rule 22 (Consent awards)

12.1   Omit the rule, substitute:

RULE 22 AWARD BY CONSENT OF THE PARTIES

• “(1)

  If in settlement (or in part settlement) of matters in dispute, parties to a dispute seek the making of an award by consent under paragraph 111 (1) (b) of the Act, the parties must lodge a copy of the proposed award with the member of the Commission or a Full Bench, as the case may be, hearing the dispute.

• “(2)

  Each party to the proposed award by consent must also lodge a written statement, signed by a person duly authorised by the party to do so, stating that the terms of the proposed award by consent have been approved by the party.”.

13.   Rule 23 (Application for certification of agreement)

13.1   Omit the rule, substitute:

RULE 23 APPLICATION FOR CERTIFICATION OF AGREEMENT

• “(1)

  An application to the Commission under subsection 134c (3) of the Act for the certification of an agreement must be in accordance with Form R6 and accompanied by a copy of the memorandum of agreement signed by the parties to the agreement.

• “(2)

  Each party to the agreement must lodge, to accompany the application, a statutory declaration made by a person duly authorised by the party to do so.

• “(3)

  If the agreement is one that applies only to a single business, part of a single business or a single place of work, a Registrar must provide the Minister with a copy of the application, memorandum of agreement and statutory declaration(s). This subrule does not require a Registrar to provide the Minister with a copy of the application, memorandum of agreement and statutory declaration(s) where the Minister is a party to such agreement. This subrule will cease to have effect upon section 134d of the Act ceasing to have effect.

• “(4)

  The statutory declaration referred to in subrule (2) must indicate whether each of the requirements of section 134e necessary for the certification of the agreement are met (including whether circumstances exist that result in one or a number of the requirements in subsection 134e (1) not having to be met) and the facts upon which that opinion is based. Each of the requirements must be dealt with in a separate numbered paragraph which must identify the relevant part of section 134e to which the opinion and facts referred to in that paragraph relate.

• “(5)

  A party to an agreement which is not a organisation of employees is not required to deal, in the statutory declaration filed on its behalf, with the matters referred to in paragraphs 134e (1) (c) or (d).”.

14.   New rule 23a

14.1   After Rule 23, insert:

RULE 23a MINISTER MAY INTERVENE IN CERTAIN CASES

 “The written notice given by the Minister under subsection 134d (2) of the Act must particularise the grounds on which certification of the agreement may seriously jeopardise the public interest.”. 

RULE 23b NOTIFICATION OF EXTENSION OF CERTIFIED AGREEMENTS

 “A notification under section 134k of the Act must be in accordance with Form R6A.”.

15.   New rule 24a

15.1   After Rule 24, insert:

RULE 24a REVIEW OF AGREEMENT ON APPLICATION BY PARTY TO THE AGREEMENT

• “(1)

  An application under paragraph 134m (2) (b) of the Act for review of the operation of a certified agreement must be in accordance with Form R7A.

• “(2)

  The applicant must serve a copy of the application on all other parties to the certified agreement.

• “(3)

  When the time and place for hearing the application has been fixed by the Commission, a Registrar must furnish to the applicant a copy of the notice of the hearing for the purpose of service.

• “(4)

  The applicant must serve a copy of the notice of hearing on all other parties to the certified agreement.”.

16.   Rule 25 (Review of agreement on application by Minister)

16.1   Omit “117 (1) of the Act shall”, substitute “134m (7) of the Act must, excluding subrules 10 (2), 10 (2a) and 10 (3),”.

17.   Rule 26 (Declaration that party is no longer bound by agreement)

17.1   Subrule 26 (1):

Omit “117 (5)”, substitute “134m (5)”.

17.2   Subrule 26 (1):

Omit “shall”, substitute “must”.

17.3   Subrule 26 (2):

Omit “shall”, substitute “must”.

17.4   Subrule 26 (3):

Omit “a member of”.

17.5   Subrule 26 (3):

Omit “shall”, substitute “must”.

17.6    Subrule 26 (4):

Omit “shall service”, substitute “must serve”.

18.   New rule 26a

18.1   After Rule 26, insert:

RULE 26a CERTIFIED AGREEMENTS MAY BE TERMINATED BY PARTIES

• “(1)

  A notification under subsection 134n (1) of the Act must be in accordance with Form R8A.

• “(2)

  A notification under subsection 134n (2) of the Act must be in accordance with Form R8B.”.

19.   Rule 34 (Documents)

19.1   Subrule 34 (1):

Omit “where”, substitute “if”.

19.2   Subrule 34 (1):

Omit “shall”, substitute “must”.

19.3   Subrule 34 (2):

Omit “Divisions 1, 2 and 5”, substitute “Divisions 1 and 2”.

19.4   Subrule 34 (2):

Omit “shall”, substitute “must”.

19.5   Subrule 34 (3):

Omit “shall”, substitute “must”.

20.   Rule 36 (Service of documents)

20.1   Subrule 36 (1):

Omit “shall”, substitute “must”.

20.2   Subrule 36 (2):

Omit “shall”, substitute “must”.

20.3   Paragraph 36 (2) (c):

Omit “where”, substitute “in a proceeding in which”.

20.4   Paragraph 36 (2) (d):

Omit “Secretary”, substitute “secretary”.

20.5   Paragraph 36 (2) (d):

Omit “where”, substitute “in a proceeding in which”.

20.6   Subrule 36 (3) (definition of “registered office”):

Omit “principle office”, substitute “principal office or the principal place of business”.

20.7   Subrule 36 (4):

Omit “shall”, substitute “must”.

21.   Rule 37 (Directions as to service)

21.1   Subrule 37 (1):

Omit “Where”, substitute “If”.

21.2   Subrule 37 (1):

Omit “or a member of the Commission”.

21.3   Subrule 37 (1):

Omit “or the member”.

21.4   Subrule 37 (2):

Omit “Where”, substitute “If”.

21.5   Subrule 37 (2):

Omit “or a member of the Commission” (twice occurring).

21.6   Subrule 37 (2):

Omit “shall”, substitute “must”.

22.  Schedule

22.1   Forms R1 and R2:

Omit the forms, substitute:

 FORM R1 Rule 10

Industrial Relations Act 1988

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

NOTICE OF APPEAL UNDER SECTION 45

IN the matter of: [insert the title of the matter and the case number]

Notice of an appeal is given by [insert name of applicant] against [* the decision, award, order or opinion made or act or refusal or failure to make a decision or do an act] 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 grounds including particulars of the grounds on which it is claimed that the matter is of such importance that, in the public interest, leave to appeal should be granted]

Dated 19 .

 

 Signature of applicant

* The applicant must detail the particulars of the matter(s) being appealed by way of specific reference to the categories listed in subsection 45 (1) of the Act.

Note: If it is intended to seek a stay of the whole or part of the award, order or decision 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, order or decision] be stayed pending the determination of this appeal or until further order of the Commission.

• Dated

  19 .

 

 Signature of applicant”

 FORM R1A Rule 10

Industrial Relations Act 1988

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

APPLICATION FOR AN EXTENSION OF TIME FOR

INSTITUTING AN APPEAL

IN the matter of: [insert the title of the matter and case number]

 

Application is made by [insert name of applicant] for an extension of time for instituting an appeal against [* the decision, award, order or opinion made or act or refusal or failure to make a decision or do an act] 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 applicant

* The applicant must detail the particulars of the matter(s) being appealed by way of specific reference to the categories listed in subsection 45 (1) of the Act.

 FORM R2 Rule 12

Industrial Relations Act 1988

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

NOTICE OF APPEAL UNDER SECTION 81

IN the matter of: [insert the title of the matter that is the subject of this application]

Notice of an appeal is given by [insert name of applicant] against [* the decision made or act or refusal or failure to make a decision or do an act] by [name of Registrar] at [place] on [date] in this matter.

The grounds of this appeal are as follows:

[Set out in numbered paragraphs the grounds including particulars of each ground]

Dated 19 .

 

 Signature of applicant

* The applicant must detail the particulars of the matter(s) being appealed.

Note: If it is intended to seek a stay of the whole or part of the decision or act concerned 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 any part of the decision or act concerned] be stayed pending the determination of this appeal or until further order of the Commission.

• Dated

  19 .

 

 Signature of applicant”

22.2   After Form R3, insert:

 FORM R3A Rule 15

Industrial Relations Act 1988

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

APPLICATION FOR AN ORDER UNDER SECTION 118a

IN RELATION TO ORGANISATION COVERAGE

Application is made by [insert name of applicant] for the following order:

[Set out terms of order sought]

The grounds on which this application is made are as follows:

[Set out the grounds in numbered paragraphs]

The following organisations and persons may have an interest in this matter:

[Set out names of organisations and persons which may have an interest in this matter]

Dated 19 .

 

 Signature of applicant

22.3   Forms R5 and R6:

Omit the forms, substitute:

 FORM R5 Rule 21a

Industrial Relations Act 1988

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

APPLICATION TO REVIEW A CONTRACT

IN the matter of a contract between: [insert names of parties to the contract]

Application is made by [insert name of applicant party] who is [specify whether applicant is a party to the contract or is an organisation of employees or organisation or association of employers of which a party is a member, acting with the written consent of the party *] for the review of a contract.

Details of the contract are as follows:

[Set out in numbered paragraphs a brief description of the contract including particulars of how the contract comes within section 127c**]

The grounds on which this application is made are as follows:

[Set out in numbered paragraphs the grounds and particulars of the grounds]

The interim orders sought are:

[Set out in numbered paragraphs the interim orders sought (if any)]

The final orders sought are:

[Set out in numbered paragraphs the final orders sought]

Dated 19 .

 

 Signature of applicant

To all parties to the contract.

You are hereby notified that this application will be heard by [insert name of member of the Commission] at [time] on [date] at [place] and that you may appear and be heard at the time and place so fixed.

Dated 19 .

 

 Member of the Commission or Registrar

* An application made by:

• (a)

  an organisation of employees of which the independent contractor is (or has applied to become) a member, if it is acting with the written consent of the independent contractor; or

• (b)

  an organisation or association of employers of which the person contracting for the services is (or has applied to become) a member, if it is acting with the written consent of the person;

 must be accompanied by such written consent.

** A contract in writing and which is in the possession or control of the applicant must accompany the application.

 FORM R6 Rule 23

Industrial Relations Act 1988

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

APPLICATION FOR CERTIFICATION OF AN AGREEMENT

IN the matter of: [insert title of the matter and original dispute number(s)]

Application is made by [insert the names of the parties to the agreement] for the certification of the attached memorandum of agreement reached in settlement (or part settlement) of this matter.

* This memorandum of agreement applies only to a single business, part of a single business or a single place of work.

Dated 19 .

 

 Signature of applicant(s)

Note: In respect of each party to the agreement, the application must be accompanied by statutory declarations of the type described in subrules 23 (2), (4) and (5).

* Omit if inapplicable

 FORM R6A Rule 23b

Industrial Relations Act 1988

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

NOTIFICATION OF EXTENSION OF CERTIFIED AGREEMENTS

IN the matter of: [insert title of the certified agreement and case number]

Notification is given by [insert names of the parties to the agreement] of the extension of the operation of this certified agreement until [date].

Dated 19 .

 

 Signatures of all parties

22.4   Form R7:

Omit “omit if inapplicable”, substitute “omit whichever is inapplicable”.

22.5   After form R7, insert:

 FORM R7A Rule 24a

Industrial Relations Act 1988

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

REVIEW OF AGREEMENT ON APPLICATION BY

PARTY TO THE AGREEMENT

IN the matter of: [insert title of the certified agreement and case number]

Application is made by [insert name of applicant] for review of the operation of this agreement.

The grounds on which this application is made are as follows:

[Set out in numbered paragraphs the grounds]

Dated 19 .

 

 Signature of applicant

To all parties or persons bound by this agreement.

You are hereby notified that this application will be heard by [insert name of member of the Commission] at [time] on [date] at [place] and that you may appear and be heard at the time and place so fixed.

Dated 19 .

 

 Member of the Commission or Registrar

22.6   After form R8, insert:

 FORM R8A Rule 26a

Industrial Relations Act 1988

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

NOTIFICATION THAT PARTY DOES NOT WANT

TO REMAIN BOUND BY AGREEMENT

IN the matter of: [set out title of the certified agreement and case number]

Notification is given by [insert name of notifier] who is a party bound by this agreement, that it does not want to remain bound by the agreement. This notification is given with the consent of all relevant parties.

[Set out in numbered paragraphs the grounds upon which it is claimed that it would be in the public interest for the party to be no longer bound]

Dated 19 .

 

 Signature of notifier and

 all relevant parties  

 FORM R8B Rule 26a

Industrial Relations Act 1988

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

NOTIFICATION BY PARTIES

THAT AGREEMENT BE TERMINATED

IN the matter of: [insert title of the certified agreement and case number]

Notification is given by [insert name of all the parties to this agreement] that they seek an order declaring that the agreement is terminated.

[Set out in numbered paragraphs the grounds upon which it is claimed that it would be in the public interest for the agreement to be terminated.]

Dated 19 .

 

 Signature of parties to agreement

22.7   Form R11:

Omit “omit if inapplicable”, substitute “omit whichever is inapplicable”.

22.8   Form R12:

Omit “should”, substitute “must”.

22.9   Form R12:

Omit “omit if inapplicable”, substitute “omit whichever is inapplicable”.

22.10   Form R14:

Omit “should”, substitute “must”.

22.11   Form R14:

Omit “omit if inappropriate”, substitute “omit whichever is inapplicable”.

22.12   Form R18:

Omit :

“[* N.B. this application should be signed by the officers of the association who sign the statutory declaration required by paragraph 33 (1) (b) of the Regulations]”,

substitute:

“[* Note: this application must be signed by 2 or more officers of the association, including the officer who makes the statutory declaration required by paragraph 33 (1) (b) of the Regulations]”.

22.13   Form R19:

Omit :

“[* N.B. this application should be signed by the officers of the association who sign the statutory declaration required by paragraph 33 (1) (b) of the Regulations]”,

substitute:

“[* Note: this application must be signed by 2 or more officers of the association, including the officer who makes the statutory declaration required by paragraph 33 (1) (b) of the Regulations]”.

22.14   Form 23:

Omit “FORM 23”, substitute “FORM R23”.

22.15   Form 23:

Omit “omit if inapplicable”, substitute “omit whichever is inapplicable”.

22.16   Form R24:

Omit “omit if inapplicable”, substitute “omit whichever is inapplicable”.

____________________________________________________________

NOTES

1. Notified in the Commonwealth of Australia Gazette on 11 December 1992.

2. Statutory Rules 1989 No. 46.