Notes for unrepresented parties
If you lodge an application with the Commission for a hearing in relation to an industrial dispute with your employer, former employer or employee, you may find the following information of assistance when preparing to come to the Commission to have your dispute heard.
This information applies whether you are the applicant (the person who lodges the application) or the respondent (the other party named in the dispute application). It is intended to give some guidance about the procedural aspects of Commission hearings.
Usually a dispute is about an alleged unfair dismissal, alleged breach of an award or industrial agreement, or a dispute about a claim for long service leave payment or redundancy payment.
If you wish, and feel comfortable doing so, you, or somebody else on your behalf (such as a parent), can talk directly to the other party and try to settle the dispute before coming to the Commission. If you manage to settle the dispute in this way please let the Commission know immediately. The file will then be closed and the Commission will have no further role.
If you choose not to have private discussions with the other party, or if such discussions have been unsuccessful, then the application will be dealt with by the Commission.
In the Commission, you are able to be represented by an industrial advocate, an organisation (such as a union, if you are an employee, or an employer organisation if you are an employer), or another person of your choice. You may also be able to be represented by a lawyer, who will have to seek the leave of the Commissioner to appear on your behalf. Whether or not that leave will be granted will depend upon the circumstances of the case. The Commissioner who deals with your application will want to ensure that no party to the dispute is disadvantaged.
It is not necessary that you have someone to represent you. You can choose to represent yourself. You can also bring along a support person or persons if you want. Please bring along three copies of all relevant documents (one for the Commissioner, one for you and one for the other party).
Depending upon the circumstances and the stage at which the matter is, it will be dealt with either by a conference (known as a 'conciliation conference'), or a hearing, or a combination of both.
A conciliation conference is a discussion, with the assistance of a Commissioner, the purpose of which is to try to resolve the dispute between the parties.
There is almost always a conference first, and it is only when a dispute is unable to be resolved through discussions, that it proceeds to a formal hearing. Once it has been decided that the matter will be dealt with by way of a hearing, then you will need to ensure that any witnesses you intend to call are present at the hearing. You will also need to bring three copies of any documents which you intend presenting in support of your case.
Depending upon the location, the dispute may be heard either in a court room or a conference room. You should arrive a few minutes before the start time. The Commissioner's Associate will show you where to sit and will explain the procedures to you. The Associate will answer any questions if there is anything you are not sure about.
Once you know the time and date of your conference/hearing, the following procedures will generally be followed:
- When the Commissioner enters the room those present will be asked to stand. If it is a hearing, then you should stand when you are addressing the Commissioner. The correct form of address is 'Commissioner'.
- The Commissioner will ask for 'appearances'. Simply state your name and say that you are appearing for yourself. In the case of an employer, state the name of your business. If you have brought a support person along you should also state who is appearing with you.
- The proceedings may be recorded. This will depend upon the location and what stage the proceedings are at. If it is at the hearing stage the proceedings will be relatively formal (but not legalistic). If the Commissioner decides that a verbatim transcript should be prepared, you will be provided with a copy.
- Whether it is a conference or a hearing, the Commissioner will ask the applicant for a brief statement describing what the dispute is about. It is a good idea to have this prepared in advance, and you can read from it if you wish. The Commissioner will then ask the respondent, usually the employer, to make a statement in response.
- The Commissioner will usually ask questions of both parties in order to clarify matters or to find out further information.
- If it is at the conference stage of proceedings, the Commissioner may have private discussions with each of the parties, and may also chair discussions with both of the parties around the table. A conference is not open to the public, but your support person may join you in the conference. A conference is confidential and is an opportunity to explore ways and means of resolving the dispute. Suggestions may be made as to how the dispute might be resolved. Nothing that is said at this stage represents the final view of the Commissioner about the merits of each party's case.
- Almost all disputes are resolved in conference. Once the parties have reached an agreement in settlement of the dispute, the Commissioner may require that the terms of the settlement be formally recorded. This can take a variety of forms, for example, the Commissioner may issue a Consent Order or the parties may sign a Deed of Settlement. The agreement reached is in full and final settlement of the dispute, and the applicant is not able to bring any further claims in relation to the matter in dispute, nor are they able to come back at a later stage seeking a different outcome.
- Sometimes, it is not possible to reach an agreement during the conference. In that case, the applicant may decide not to pursue the matter further, or may choose to proceed to a hearing. The hearing may take place on the same day or at a later date, depending upon the circumstances. This stage of the proceedings is known as 'arbitration'. This is a more formal process than conciliation. Sometimes people decide at this stage to obtain representation, even though they have been self-represented up until this point. There is, however, nothing to stop you from conducting the arbitrated hearing yourself.
- If a dispute is arbitrated, then the Commissioner will hear formal arguments from the parties in support of their position. Evidence may be presented, which can be in the form of witnesses and/or documents. The Commissioner will issue a decision, based upon the merits of the case, after considering all of the evidence and submissions from the parties. The decision will be issued in writing, and will be provided to both parties. Usually, the decision contains an Order in settlement of the dispute, for example, the Commissioner may order that compensation be paid, or that an employee be reinstated.
- If you decide to lodge an appeal against the Commissioner's decision, you have 21 days in which to do so.
- You are responsible for all of your own costs, regardless of the outcome.
Parties to disputes before the Tasmanian Industrial Commission may find it helpful to read the relevant sections of the Industrial Relations Act 1984, namely sections 29, 30 and 31. Copies of the Act are available on the internet or from the Government Printer.
Determinations concerning the review of applications by State Service employees in relation to selection and other actions relating to their employment can only be reviewed by the Supreme Court of Tasmania.