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Presenter: The Honourable Reg Hamilton Deputy President Employment Dispute Resolution Systems - Practical and Administrative Aspects.

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Presentation on theme: "Presenter: The Honourable Reg Hamilton Deputy President Employment Dispute Resolution Systems - Practical and Administrative Aspects."— Presentation transcript:

1 Presenter: The Honourable Reg Hamilton Deputy President Employment Dispute Resolution Systems - Practical and Administrative Aspects

2 © Commonwealth of Australia — Fair Work Australia2 Topics to be covered 1. Outline of Fair Work Australia Powers and Functions 2. Time Measures Application to Fair Work Australia 4. Notice of listing 5. Appearances 6. How hearings begin 7. Conciliation/Mediation 8. Directions for submissions 9. Layout of Fair Work Australia Courts 10. Oath sworn by witnesses 11. Evidence 12. Procedure in arbitration 13. Transcript 14. Fair Work Australia’s website

3 Outline of Fair Work Australia Powers and Functions Fair Work Australia is the national workplace relations tribunal. It is an independent body with power to carry out a range of functions relating to: the safety net of minimum wages and employment conditions - establishing and varying minimum conditions, such as the minimum wage enterprise bargaining - assisting bargaining, approving enterprise agreements industrial action - stopping industrial action not in support of enterprise bargaining dispute resolution - disputes about terms and conditions of employment established by the Act, awards, or agreements, other disputes termination of employment - providing remedies for unfair dismissals other workplace matters It acts according to ‘good conscience, equity and the [substantial] merits of the case’ It acts as a quasi-judicial tribunal, using court procedures such as the requirements of natural justice, and independence from Government and the industrial parties 3

4 Time measures The time from lodgement of unfair dismissal application to finalising conciliation - median time 28 days Time taken to list applications relating to industrial action - median time 3 days Average approval time for enterprise agreements - 21 days 4

5 © Commonwealth of Australia — Fair Work Australia5 Application to Fair Work Australia

6 6 Sample grounds No valid reason for dismissal - Allegation of poor performance, false Dismissal was harsh, unjust or unreasonable - employee was dismissed for swearing at supervisor, but the employee did not swear Being paid under the wrong classification of an agreement Being relocated/dismissed after exercising a workplace right Demotion after announcing pregnancy Employer targeting union members for redundancy Union/employer not genuinely trying to reach agreement or not bargaining in good faith Union/employees applying for a protected action ballot

7 Application to Fair Work Australia 7 5. Grounds: 1. The applicant commenced employment with the respondent on 24 May 2009 as a full time employee. 2. On 10 June 2011, the applicant noticed the respondent had not paid the correct wages owing because overtime had not been paid in accordance with Clause 10 of the Agreement (see Attachment A). 3. On 14 June 2011, the applicant met with the respondent to find out why the overtime payment was not paid. The respondent said that Clause 10 of the Agreement did not apply to the hours worked by the applicant because the hours were within the four weeks/ 38 hours a week on an average work cycle. 4. On 16 June 2011, the applicant met with the union and told them that he had not been paid overtime and the respondent had refused to pay it insisting that overtime did not apply to the hours worked. 5. The applicant had previously been paid overtime for the hours worked and has payslips to confirm this (see Attachment B). 6. The dispute resolution process of the Agreement, Clause 22 (see Attachment C) has been followed and the parties have been unable to resolve the dispute. 7. In accordance with Clause 22 the dispute has been referred to Fair Work Australia for resolution by arbitration. Sample grounds – APPLICATION FOR FWA TO DEAL WITH A DISPUTE IN ACCORDANCE WITH A DISPUTE SETTLEMENT PROCEDURE

8 Notice of listing 8

9 © Commonwealth of Australia — Fair Work Australia9 Appearances U2011/ June 2011 Melbourne 8 June 2011 A5 Applicant’s Representative (Union Industrial Officer) Applicant Respondent’s Representative (Solicitor – Law Firm) Respondent 1. Applicant 2. Ms A. Witness 3. Mr B. Heard 1. Respondent 2. Ms C. Cashmore 3. Mr D. Shilling

10 How hearings begin If the application is not withdrawn or does not settle at or before the conciliation/mediation, the applicant and the respondent will each receive a written notice of listing of any hearing or conference to be held on the application. Usually at least one weeks notice is sought except if it is industrial action. A conference is generally conducted in private while a hearing is usually open to the public. Hearings (and conferences) deal with applications for an extension of time for the lodgment of an application, jurisdictional objections to an application and the merits arbitration of an application. The notice of listing of a conference or hearing will include the time, date and location of the conference or hearing. The notice of listing may also include directions for the lodgment of written material with Fair Work Australia by the applicant and the respondent. An application for an adjournment of the conference or hearing must be given in writing and provide full reasons for seeking the adjournment. Adjournment applications will only be granted on substantial grounds. 10

11 Conciliation/Mediation Conciliation/Mediation is an informal, private and confidential process where an independent third party assists to bring the parties to an agreed resolution. Conciliation/Mediation generally follow these steps: 1. The conciliator/mediator explains their role and the manner in which the negotiation is to be conducted. 2. Each side may briefly outline their story including what happened, any relevant facts and what they want. 3. The conciliator/mediator may allow or ask questions, the circumstances, and any issues arising, are discussed. 4. The conciliator /mediator may talk separately to the parties in private. 5. The conciliator /mediator assists the parties to reach agreement by identifying common ground, suggesting possible options and sometimes by making recommendations and assisting the parties in drafting an agreement in writing. 11

12 Directions for submissions 12

13 Layout of Fair Work Australia Courts 13

14 Layout of Fair Work Australia Courts 14 Coat of Arms

15 15

16 Oath sworn by witness CHRISTIAN OATH Please place your right hand on the Bible and repeat after me: ‘I swear by Almighty God, that the evidence I shall give in this matter before Fair Work Australia will be the truth, the whole truth and nothing but the truth’ In place of swear the person taking the oath may promise. In place of Almighty God the person may name a god recognised by his or her religion. An Interpreter must be sworn first and then the Witness sworn through the Interpreter. AFFIRMATION Repeat after me: ‘I solemnly and sincerely declare and affirm, that the evidence I am about to give, in this matter before Fair Work Australia, will be the truth the whole truth and nothing but the truth.’ 16

17 Oaths and Affirmations JEWISH ‘I swear by the great God of Israel, and the five books of Moses, to speak the truth, the whole truth and nothing but the truth.’ Witness may wear a hat or other head covering. Old Testament is used for swearing. MUSLIM A Muslim can be sworn on the Koran. The form proceeds in the usual form of oath. Thus the witness places his/her hand on the Koran and says: ‘I swear by Almighty God (Allah), that the evidence I shall give in this matter before Fair Work Australia. will be the truth the whole truth and nothing but the truth.’ At the discretion of the witness he/she may say either “God” or “Allah”. The two are identical and interchangeable. The utmost care must be exercised to see that the Koran is kept, brought into the court and presented to the witness in a clean cloth. 17

18 Oaths and Affirmations BUDDHIST ‘I do declare, as in the presence of Buddha, that I am unprejudiced, and if what I shall speak proves false, or if by colouring truth others shall be led astray, then may the three holy existences Buddha, Dhamma and Pro Sangha, in whose sight I now stand, together with the glorious devotees of the twenty-two firmaments, punish me and my migrating soul.’ HINDU ‘I swear, by the holy water of the Ganges, and by the sacred animal the cow, that the evidence I shall give shall be the truth, the whole truth, and nothing but the truth. If I do not tell the truth may my soul be damned.’ CHINESE ‘If I do not tell the truth, the whole truth, or if I tell anything but the truth, in this matter, may the Great God, extinguish my soul hereafter, as I now extinguish this light.’ Associate lights a match and the witness blows it out. 18

19 Oath or Affirmation for Interpreter OATH FOR INTERPRETER ‘I swear, by almighty God that I will well and truly interpret the evidence about to be given from the _____.language to the English language,. and from the English language to the _____ language, to the best of my ability.’ AFFIRMATION FOR INTERPRETER ‘I solemnly and sincerely declare and affirm. that I will well and truly interpret. the evidence about to be given from the ____.language to the English language,. and from the English language to the ____language, to the best of my ability.’ The interpreter is sworn first and then the witness is sworn through the interpreter. 19

20 Requirements of Natural Justice Fair Work Australia is required to observe natural justice in hearing and determining matters. That is, the tribunal is required to give each party their ‘day in court’, ie. give them a fair opportunity to put a case. These requirements are relevant to all aspects of the tribunal procedures including to the scheduling of hearings, and then the procedures followed during the hearing. These include giving each party the opportunity to put submissions and evidentiary material in support of their case, the opportunity to respond to submissions and evidentiary material of others, and giving each party a fair hearing free of bias. (See for example Lord Loreburn L.C.in Board of Education v. Rice (1911) A.C. 179); Kitto J in Mobil Oil Australia Pty Ltd v. Commissioner of Taxation (1963) 37 ALJR 182 at ) 20

21 Evidence 21 Fair Work Australia is not bound by rules of evidence and procedure – in relation to a matter before it (whether or not Fair Work Australia holds a hearing in relation to the matter) - Section 591 of the Fair Work Act 2010 (Cth)

22 Evidence [69] The application of the similar fact rule in an unfair dismissal case was considered by the Industrial Commission of New South Wales in Court Session in Amalgamated Metal Workers Union v Electricity Commission (NSW). In that case the Commission said: "The primary question which arises in relation to the admissibility of any evidence concerns its relevance to the issues in the proceedings. All relevant evidence, that is, evidence probative of a fact or matter in issue, is prima facie admissible. The converse, that irrelevant evidence is not admissible, is also true. It is, and has been for some time, a matter of some debate as to whether or not the similar fact rule is nothing more than an expression of the primary rule that evidence is admissible only if it is relevant. There is much to be said for the view that the question of whether evidence of `similar facts' is admissible in any case ultimately boils down to the question (by no means simple of answer in many cases) of whether or not the particular evidence is relevant to the issues in that case." 22 King v Freshmore, Full Bench of the Australian Industrial Relations Commission, Print S4213S4213

23 Evidence Powers of Fair Work Australia to inform itself – Section 590 of Fair Work Act 2010 (Cth) (1) FWA may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate. (2) Without limiting subsection (1), FWA may inform itself in the following ways: (a) by requiring a person to attend before FWA; (b) by inviting, subject to any terms and conditions determined by FWA, oral or written submissions; (c) by requiring a person to provide copies of documents or records, or to provide any other information to FWA; (d) by taking evidence under oath or affirmation in accordance with the regulations (if any); (e) by requiring an FWA Member, a Full Bench or the Minimum Wage Panel to prepare a report; (f) by conducting inquiries; (g) by undertaking or commissioning research; (h) by conducting a conference (see section 592); (i) by holding a hearing (see section 593). 23

24 Procedure in arbitration 1. Appearances noted for transcript 2. Opening submissions – Applicant followed by respondent 3. Witness evidence – Including cross-examination 4. Closing submissions – Applicant followed by respondent followed by applicant in reply 5. Decision – Oral on transcript, or reserved for a period which may be short or long, depending on the complexity of the matter. 24

25 Order 25

26 FWA website: 26

27 THANK YOU


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