Recovery of unpaid wages and superannuation
Section 475 and 476 of the Industrial Relations Act 2016 makes provision for the recovery of unpaid Wages and Superannuation Contributions through the Queensland Industrial Relations Commission where the total amount of the claim does not exceed $50,000. This section of the Act also stipulates that any claim must be made within 6 years of the amount becoming payable.
Who can make such an application through the Commission?
a. For Superannuation Contributions only
An employee who during the period of employment was an eligible employee for whom their employer was required to contribute to an approved Superannuation Fund on their behalf.
b. For any other claim (which may include superannuation contributions):
- An employee;
- An employee organisation acting for an employee or an eligible employee (where the claim includes superannuation) who is a member of that organisation;
- A person authorised by an eligible employee to make an application acting on the employees behalf; or
- An inspector.
How do I make an application?
The first step is to complete an "Application to Recover Unpaid Wages, Superannuation Contributions Etc" [Form 15]. Application forms can be downloaded from the Queensland Industrial Relations Website.
Alternatively, copies can be obtained from the Registry by telephoning 322 78060 or collected from the counter at:
Central Plaza II
66 Eagle Street
BRISBANE Q 4000
Once the application has been completed the original should be lodged with the Registry at the above address. There is currently no fee for lodging the application.
NB: It is important that all relevant sections of the form are completed and that any documents showing details of the calculations of the amounts owing are attached
In due course you or your representative will receive a "Directions Order" from the Registrar instructing you to serve a copy of the completed Application [Form 15] and a copy of the "Directions Order" on the Respondent.
The Directions Order will include details of the time and place of a conference before a Commission Member. However, under certain circumstances it may not be practical to allocate a conference and in these circumstances, the applicant or the applicant's agent may request the conference be waived.
Such circumstances may include;
(i) where an applicant (or the applicant's agent) has had discussions with the respondent prior to the application being filed and the applicant (or the applicant's agent) believes a conference before the Commission is unlikely to settle the matter; or
(ii) where discovery is required in order to finalise the claim.
Any such request is to be addressed in writing to the Industrial Registrar, briefly stating the reason for it and must be submitted at the time the application is filed. A Member will determine whether the application will be set down for a conference and/or hearing.
Who can attend the Conference?
Either party may choose to be represented by an industrial advocate, an employer or employee organisation or another person of their choice, or they may choose to represent themselves. Section 530 of the Industrial Relations Act 2016 does not allow for either party to be represented by a solicitor in matters of this nature.
What happens in the conference?
The conference will normally take place in a conference room at the venue indicated on the Directions Order. It is advisable for parties who are not familiar with the process to arrive a few minutes before the time set down for commencement. The Commission Member's Associate will explain the procedures and answer any questions you may have in relation to the proceedings.
It is not usual for the proceedings of this nature to be recorded on transcript.
During the course of the conference, the Commission Member may make recommendations and suggestions to help settle the application without the need to proceed to a formal hearing. The correct manner to address a Commission Member during these proceedings is "Commissioner" or Sir/Madam. Other Members, known as Presidential Members, should be addressed as 'Your Honour' or by their title - such as 'President', 'Deputy President'.
If the application is settled at a conference, the settlement may be recorded:
- in a private deed of settlement to be signed by both parties; or
- on the internal form used by the Commission; or
- as consent orders at the request of a party to the Member chairing the conference.
A consent order will only be issued in circumstances where the parties prepare a draft written order, at the conclusion of the conference chaired by a Member of the Commission, and that draft written order is signed by all parties.
If the issues are not resolved, the Commission Member will advise the Deputy President and the matter will then be allocated to another Member of the Commission to conduct the hearing.
An applicant who wishes to consider their position after the conference or who does not wish the matter to immediately proceed must so notify the Commission Member at the conclusion of the conference. The application will then not be allocated to another Member until written advice is received from the applicant.
FORMAL HEARING PROCESS
Registry Officers are able to provide information and advice about Registry and Commission procedures and practices. Telephone: (07) 32278060.
The hearing of an application usually involves two steps. The directions hearing or call over and the formal hearing.
What is a Directions Hearing or Call Over?
A directions hearing or call over is a short hearing and is conducted to programme the proceedings and to determine preliminary matters, e.g., the number of witnesses likely to be called; the time required for the hearing; dates available and the preferred location for the hearing.
At the completion of the directions hearing or call over, the Member will issue a further directions order setting out details of the conduct of the matter including the dates of hearing. This directions order must be complied with.
The Formal Hearing
Formal hearings of applications are before a Commission Member who comes to the matter fresh. Only in very unusual circumstances (and generally only when both parties consent) will a Commission Member who presided at a conciliation conference proceed to hear and determine the same matter.
All hearings are open to the public, except in the most unusual of circumstances, and all proceedings are recorded on transcript.
Parties may represent themselves or have a representative present their case. Legal representation is not permitted for applications made under s. 475 of the Act
The Commission Member's Decision
A decision will only be handed down at the end of the hearing in cases that are clear cut.
The Commission will generally reserve its decision. This ensures full consideration of the matters presented by both parties and the production of a written decision. This can take a few days or weeks to complete, depending on the complexity of the issues.
Written reasons for decision are simultaneously released to all parties and their representatives. The decision may be appealed by either party. Strict time limits apply and appellants may need to seek legal advice
You can appear before the Commission and represent yourself. You may need to undertake detailed research to identify relevant legal principles and precedents to ensure that you present your case effectively. Registry Officers cannot do legal research for any party appearing before the Court or the Commission.
If you have not reached a settlement and intend to represent yourself before the Commission at a formal hearing, we recommend that you:
- contact the office of the Commission Member who is scheduled to hear your case and inform the Commission Member's Associate of your intentions; and
- prior to commencement of your hearing, make time to attend a similar hearing at the Commission so that you can familiarise yourself with the hearing room environment, procedures and what will be expected of you at your hearing.
Further information on court procedure and courtroom etiquette can be obtained from the information sheet "Guide For Unrepresented Parties in the Queensland Industrial Relations Commission".
Industrial Advocates provide representation and advocacy services for parties appearing before the Commission and the Court. Some industrial advocates are listed in the Yellow Pages directory under the heading 'Industrial Relations Consultants'.