Guide for self-represented parties in the Queensland Industrial Relations Commission (QIRC)
The following information is intended to give some guidance about the procedural aspects of commission hearings to parties who have either filed an application with the Commission or who are respondent to an application (the other party named in the application) and who do not wish to be represented by another party such as an industrial organisation, agent, advocate, or lawyer.
When should I file an Application?
Prior to filing an application with the commission, the following needs to be considered if any application relative to this matter has already been made in another jurisdiction i.e.
- Anti Discrimination Commission
Simultaneous action can not be taken through the Queensland Industrial Relations Commission. However, if an application is filed with the commission in the first instance, an application may be filed with the Anti Discrimination Commission at a later stage.
Where possible, every effort should be made to settle the matter with the other party prior to filing an application with the commission. In some instances, negotiations are just not an option and, so, if you choose not to have private discussions with the other party, or if such discussions have been unsuccessful, then the application should be filed with the Industrial Registry and will then be dealt with by the commission.
It should be noted that in some cases there is a time limit for filing the application. The time limit can be found in legislation under which you are filing the application.
- Application for unfair dismissal - 21 days after the dismissal takes effect (see s. 317 of the Industrial Relations Act 2016)
- Workers' Compensation Appeals - within 20 business days after the appellant receives the notice of the review decision (see s550 of the Workers' Compensatioin and Rehabilitation Act 2003).
If you have already filed an application and you manage to settle the matter, you should let the commission know in writing immediately. A Notice of discontinuance (Form 26) for unfair dismissals or (Form 27) for all other matters) should also be filed in the registry.
There are a number of factors which may influence one or other of the parties in deciding whether to represent themselves or to seek the assistance of an industrial organisation, agent, advocate or lawyer. For some the cost factor may be prohibitive whilst others may feel quite comfortable conducting their own case.
Even if you do decide to represent yourself there is still the option of obtaining advice from another source such as an advocate or lawyer when preparing your case and this may be more cost effective than having them appear on your behalf. You may also consider bringing a friend, relative or other individual with you as support. If however, you do not feel confident of running your own case, you may choose to be represented by one of the following;
- an organisation (such as a union, if you are an employee, or an employer organisation if you are an employer);
- an advocate;
- another person of their choice; or
- a lawyer or solicitor.
Note: In the case of legal representation, you will need to seek the approval of the commission member for your representative to appear. Whether or not that leave will be granted will depend upon the circumstances of the case. The Member who deals with the matter will want to ensure that no party to the matter is disadvantaged.
In addition to the above, there are a number of support agencies who may be able to assist you depending on your circumstances. These include:
- Queensland Working Women's Service Inc (wwq.org.au);
- Young Workers Advisory Service (ywas.org.au).
You can find the contact details of private legal practitioners by visiting the website www.qls.com.au. You can find details of your closest community legal centre by visiting the website http://communitylegalqld.org.au/.
What if I have language problems?
If English is not your first language, or you have difficulties such as visual or hearing impairment, you may know a person or community organisation who can assist you. You can generally bring along such a person to the commission proceedings to assist you.
If you are having difficulty understanding the information in this document and you do not have someone you can approach for assistance, please contact the Industrial Registry. You may also phone the Translating and Interpreter Service (TIS). This is a national service available through the Department of Immigration and Multicultural Affairs 24 hours a day, seven days a week. The number is 131 450 and the cost is that of a local call.
Proceedings in the Commission
If you are appearing in the commission it is likely the proceedings will be either a conciliation conference or a hearing. A conference is generally informal and private while a hearing is formal and can be attended by members of the public.
A conciliation conference is a discussion, with the assistance of a commission member, to try to resolve the issues between the parties.
Only when a matter is unable to be resolved through discussions at the conference, will it proceed to a formal hearing.
A hearing in the Commission is a formal process where parties put forward arguments and other information (known as submissions) and witness evidence and documents can be presented. A typed record of what was said in the hearing (known as transcript) is produced for later reference.
A transcript may be issued by the Industrial Registry in electronic form, free of charge, to a party to the proceeding, or that party's representative. The request must be made on a transcript order form.
If you are representing yourself you will sit at a table (known as the bar table) facing one or more members of the commission who will sit at a raised platform (known as the bench). The commission member's associate sits at the table immediately in front of the bench and faces the parties.
If you have any questions about procedures please ask the associate before proceedings start. As is the case with all registry staff, please understand that associates do not give legal advice. If you don't understand something during proceedings ask the commission member hearing the proceedings.
The process known as arbitration involves a hearing, at the end of which the commission member makes a decision that is binding on both the applicant and the respondent (subject to any appeal that may be available).
Note: Please remember that a case may be settled at any time during the proceedings by agreement of the parties involved.
Preparing for a 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 any documents which you intend presenting in support of your case.
As the applicant, you will be responsible for any "witness expenses" for witnesses you call and these are to be paid in advance unless otherwise agreed.
Depending upon the location, the matter may be heard either in a court (hearing) room or a conference room. You should arrive a few minutes before the start time. The member'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.
What happens in the hearing/conference?
- When the commission member enters the room those present will be asked to stand. If it is a hearing, then you should stand when you are addressing the member.
- When you are addressing a member of the commission refer to member as follows:
- The President - Your Honour or President;
- A Deputy President - Your Honour or Deputy President;
- A Commissioner - Commissioner:
- The Commission Member will ask for "appearances". Simply state your name and say that you are appearing for yourself. In the case of a respondent, state the name of the organisation that you are appearing for. If you have brought a support person along you should also state the name of the person appearing with you.
The proceedings may be recorded. This will depend upon the type of the matter it is, the location and what stage the proceedings are at. If it is at the hearing stage the proceedings are formal and will be recorded.
- Whether it is a conference or a hearing, the commission member will ask the applicant for a brief statement describing what the matter is about. It is a good idea to have this prepared in advance, and you can read from it if you wish. The Member will then ask the respondent to make a statement in response.
- The member will usually ask questions of both parties in order to clarify matters or to find out further information.
- If the matter is at the conference stage of proceedings, the commission member 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 matter. Suggestions may be made as to how the matter might be resolved. Nothing that is said at this stage represents the final view of the member about the merits of each party's case.
- Most matters are resolved at conference. Once the parties have reached an agreement in settlement of the dispute, the commission member may require that the terms of the settlement be formally recorded. This can be done in a variety of ways, for example, the parties may sign a deed of settlement or the commission member may issue a formal consent order.
- The agreement reached is in full and final settlement of the claim. Except in the case of Workers' Compensation claims, the applicant is not able to bring any further claims in relation to the matter, nor are they able to come back at a later stage seeking a different outcome.
- In cases relating to "Reinstatement Conferences", if a settlement is not obtained, the member will issue a certificate pursuant to s. 318 (3) of the Industrial Relations Act 2016. The applicant then has 6 months on receipt of the certificate to decide if he/she wishes to proceed further, otherwise the application lapses.
- If an agreement is not reached during the conference, the applicant may decide not to pursue the matter further, or may choose to proceed to a hearing. 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 arbitration hearing yourself.
- If a matter is arbitrated, then the commission member (usually a different member to the member that chaired the conference), will hear formal arguments from the parties in support of their position and other information (known as submissions) and witness evidence and documents can be presented.
- After considering all of the evidence and submissions from the parties, the member will issue a decision based on the merits of the case. The decision will be issued in writing, and will be provided to both parties.
If you decide to lodge an appeal against the decision of the commissioner then the appeal must be lodged within 21 days from the date the decision was given.
See sections 556, 557, 560, 562, 564 to 569 of the Industrial Relations Act 2016, rules 139 and 140 of the Industrial Relations (Tribunals) Rules 2011 and sections 561 to 564 of the Workers' Compensation and Rehabilitation Act 2003.
You may call witnesses to give evidence in commission proceedings. Witnesses may voluntarily agree to give evidence or you can require them to appear. You may also provide a summary of witness evidence.
ADDITIONAL TIPS ON COMMISSION PROCEDURE
- Make sure you attend court early to avoid delaying the proceedings. Notify the associate when you arrive by approaching them in the conference/hearing room.
- If you are delayed for any reason it is important that you contact the Industrial Registry as early as possible to ensure a message is sent to the associate.
- If you have a mobile phone or pager make sure it is switched off in the conference/hearing room.
- In a hearing it is customary to bow to the bench, by inclining your head, at the beginning of the proceedings and if you leave the hearing room while proceedings are underway.
- In a hearing it is customary to stand when you are addressing the commission member or questioning a witness.
- Do not speak when a witness is taking an oath or an affirmation.
- Do not interrupt the other party or the commission member when they are speaking.
- Do not eat or chew while in the hearing. Water is provided in each conference/hearing room - no other fluids (i.e. coffee, tea, or soft drinks are permitted.
- You should show respect by dressing neatly (although you do not have to wear a suit).
- You may notice parties who are familiar with the commission using phrases such as 'If the Commission pleases.', as a newcomer to the commission you are not expected to necessarily follow such practices.