Part 5Part 5 Procedure and powers of Commission
(1) The Commission may, subject to this Act, determine its own procedure.(2) The Commission:(a) is to act as quickly as is practicable, and(b) is to conduct its proceedings publicly or, if it considers it necessary, privately, and(c) may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and(d) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and(e) may sit at any place, and(f) may require a document to be served outside the State, and(g) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and(h) may dismiss at any stage any proceedings before it if it considers the proceedings are frivolous or vexatious, and(i) may exercise, on its own initiative, any function exercisable by it on application (except when it is in Court Session), and(j) may, on its own initiative, inquire into any industrial matter.
162A Transfer of certain proceedings to Industrial Magistrates
(1) This section applies to the following proceedings:(a) proceedings for a civil penalty under Part 1 of Chapter 7,(b) proceedings for the recovery of money under Part 2 of Chapter 7.(2) If any proceedings to which this section applies have been instituted in or before the Commission in Court Session, but the hearing of the matter has not been commenced, the President of the Commission, or a judicial member of the Commission authorised by the President for the purposes of this section, may order the transfer of the proceedings to a Local Court to be dealt with by that court.(3) The President or judicial member is not to make an order under this section unless:(a) the President or judicial member is satisfied that the proceedings concerned should have been instituted in a Local Court because of the nature of the proceedings, and(b) the Local Court has jurisdiction to deal with the proceedings.(4) Any proceedings to which this section applies that are transferred to a Local Court under this section are to continue before the Local Court as if they had been instituted there.(5) In this section:Local Court means a Local Court constituted by an Industrial Magistrate sitting alone.
163 Rules of evidence and legal formality
(1) The Commission:(a) is not bound to act in a formal manner, and(b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and(c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.(2) However, the rules of evidence and other formal procedures of a superior court of record apply to the Commission in Court Session.
164 Powers of Commission as to the production of evidence, perjury and contempt
(1) The Commission may exercise the functions of the Supreme Court in relation to:(a) compelling the attendance of witnesses and examining them on oath or affirmation, or by use of a statutory declaration, and(b) compelling the production, discovery and inspection of records and other documents, and(c) compelling witnesses to answer questions which the Commission considers to be relevant in any proceeding before it, and(d) directing that a witness be prosecuted for perjury.(2) The Commission in Court Session may exercise the functions of the Supreme Court in relation to the apprehension, detention and punishment of persons guilty of contempt of the Commission (including disobedience of any order made by or process issuing out of the Commission).(3) Without limiting subsection (2), a judicial member may exercise the functions of the Supreme Court in relation to the commencement of proceedings for contempt of the Commission.Note. Section 153 (4) provides that the functions of the Commission relating to the commencement of proceedings for contempt of the Commission may also be exercised by a judicial member.
164A Powers of Commission as to the disclosure of matters before the Commission
(1) A non-disclosure order is any of the following orders:(a) an order prohibiting or restricting:(i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Commission or a witness summoned by, or appearing before, the Commission), or(ii) the doing of any other thing that identifies, or may lead to the identification of, any such person,(b) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Commission,(c) an order prohibiting or restricting the publication of evidence given before the Commission, whether in public or in private, or of matters contained in documents lodged with the Commission or received in evidence by the Commission,(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Commission, or of the contents of a document lodged with the Commission or received in evidence by the Commission, in relation to the proceedings.(2) The Commission in Court Session may make any non-disclosure order if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.(3) The Commission (other than in Court Session) may make any non-disclosure order only if:(a) in relation to proceedings under the Child Protection (Prohibited Employment) Act 1998—it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, or(b) in relation to any other proceedings—it is satisfied that it is necessary to do so in the interests of justice.(4) The Commission may from time to time vary or revoke an order it has made under this section.(5) Nothing in this section operates to limit any power of the Commission in Court Session apart from this section to make a non-disclosure order or any other order prohibiting or restricting the disclosure or publication of matters before the Commission.
(1) A summons for the purposes of this Act is to be issued by the Industrial Registrar.(2) Any such summons must be signed by a member of the Commission or the Industrial Registrar or as otherwise provided by the rules of the Commission.(3) Any such summons may require a person to do any one or more of the following:(a) attend and confer,(b) attend and give evidence,(c) attend and produce documents or other things.(4) A person who, without reasonable excuse, fails to comply with the requirements of a summons is guilty of an offence.Maximum penalty: 100 penalty units.
(5) A person does not comply with the requirements of a summons to confer if the person leaves the conference without the permission of the person presiding at the conference.(6) A summons may be served within or outside the State.
(1) A party to proceedings before the Commission may appear personally or be represented by a practising legal practitioner or by an agent who is not such a practitioner.(2) However, a party is not entitled to be represented in conciliation proceedings by a person who is a practising legal practitioner or an agent who is an industrial agent without the leave of the Commission.(3) The leave of the Commission is not required if the practising legal practitioner represents an industrial organisation (or any of its members) and is an officer or employee of the organisation.(4) The leave of the Commission is also not required if the practising legal practitioner represents a State peak council and is an officer or employee of the State peak council.(5) The Commission may allow any party appearing before it the services of an interpreter.
167 Intervention by Minister, ADB and State peak council
(1) The Minister may intervene at any stage of proceedings before the Commission. The Minister may also initiate any proceedings before the Commission.(2) The President of the Anti-Discrimination Board may intervene in any proceedings of the Commission if the President of that Board establishes that the proceedings concern unlawful discrimination under the Anti-Discrimination Act 1977.(3) A State peak council may intervene in any proceedings before the Commission if it establishes that it or any one or more of its members has a sufficient interest in the proceedings.(4) A party that intervenes or initiates proceedings under this section may do so personally or, subject to this Act, by a practising legal practitioner or agent.(5) This section has effect despite any other provision of this Act limiting the persons who may intervene in or initiate the relevant proceedings before the Commission.
(1) Proceedings for any offence in respect of which proceedings are taken before the Commission in Court Session are to be dealt with summarily by the Commission.(2) Part 5 of Chapter 4 of the Criminal Procedure Act 1986 applies to proceedings for an offence taken before the Commission in Court Session.(3) Nothing in subsection (2) affects the operation of section 170.(4) The provisions applied by this section prevail over any other provisions of this Part for the purposes of proceedings for an offence.Note. See section 196 with respect to the procedure on appeal to the Full Bench in criminal proceedings.
169 Anti-discrimination matters
(1) The Commission must, in the exercise of its functions, take into account the principles contained in the Anti-Discrimination Act 1977.(2) An issue that is the subject of proceedings before the Administrative Decisions Tribunal in relation to a matter arising under the Anti-Discrimination Act 1977 may not be the subject of proceedings before the Commission without the leave of the Commission.(3) The Commission may admit in proceedings before it evidence given before, or findings made by, the Tribunal in relation to a matter arising under the Anti-Discrimination Act 1977. This subsection does not prevent the admission of any other evidence in the proceedings that contradicts any such evidence or finding.(4) An industrial instrument may be varied at any time by the Commission in order to remove any unlawful discrimination arising from the instrument. An application for such a variation:(a) may be made by a party to the instrument, and(b) may be made by the President of the Anti-Discrimination Board with the leave of the Commission.(5) This section does not apply to criminal proceedings before the Commission in Court Session.
170 Amendments and irregularities
(1) The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice.(2) Any such amendment may be made:(a) at any stage of the proceedings, and(b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs).(3) If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings.(4) For the purposes of subsection (3), the Commission may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings.
171 Power to impose conditions
A power of the Commission to make an award, order or other decision includes a power to make the decision subject to such conditions (including exemptions) as the Commission specifies when making the decision.
172 Power to order secret ballot
(1) The Commission may order that a secret ballot be taken of any group of employees in order to find out their opinion about an industrial matter.(2) The Commission may order a secret ballot for the purpose of the exercise of any of its functions, for example, the resolution of industrial disputes, the approval of enterprise agreements and the registration of organisations.(3) The Commission is to have regard to the result of a secret ballot under this section when exercising a function relating to any matter on which persons expressed an opinion in the ballot.(4) A secret ballot may (but need not) be limited to some or all of the members of an industrial organisation of employees.(5) The Commission may order a secret ballot on the Commission’s own initiative or on application by:(a) any industrial organisation of employees, being an organisation with members who are affected by the industrial matter, or(b) at least 5% of the members of an industrial organisation of employees or 250 members of that organisation (whichever is the lesser number), or(c) an employer of the employees concerned or an industrial organisation of employers a member of which is such an employer.(6) When the Commission orders that a secret ballot be taken under this section, it must by its order:(a) give directions about the manner in which the secret ballot is to be conducted (including the type of ballot, the question to be put and the persons eligible to vote), and(b) give directions about the person who is to conduct the ballot (whether an industrial organisation of employees, the Industrial Registrar, the Electoral Commissioner or some other person), and(c) give such other directions as the Commission considers necessary to ensure that the ballot is effectively conducted.(7) The expenses incurred in the conduct of a secret ballot under this section are to be borne by the State.(8) This section does not apply to criminal proceedings.
173 Members who may exercise arbitration powers after attempted conciliation
(1) The member of the Commission who attempted conciliation of an industrial dispute or other matter is not to exercise arbitration powers in relation to the dispute or matter if a party to the arbitration proceedings objects and requests that a different member of the Commission exercise arbitration powers.(2) A member of the Commission is not, for the purposes of this section, taken to have attempted conciliation merely because:(a) the member attempted conciliation after having begun to exercise arbitration powers, or(b) the member arranged or gave directions for a conference of the parties involved in the industrial dispute or other matter, or their representatives, to be presided over by the member, but the conference did not take place or was not presided over by the member, or(c) the member arranged or gave directions for those parties or their representatives to confer among themselves at a conference at which the member was not present.
174 Powers when application settled by conciliation
If a matter that is the subject of an application to the Commission under this Act is settled by conciliation, the Commission may:(a) dismiss the application, or(b) make an order on the agreed terms for settlement.
The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument).
176 Reconstitution of Commission during hearing
(1) The President of the Commission may replace the member, or one of the members, constituting the Commission after the hearing of a matter has commenced if the member becomes unavailable for any reason, or ceases to be a member, before the matter is determined. This subsection does not apply to proceedings before the Commission in Court Session unless the parties consent.(2) The Commission as so reconstituted is to have regard to the evidence and decisions in relation to the matter that were given or made before the Commission was reconstituted.(3) If a matter arises in proceedings before the Commission (otherwise than in Court Session) that is within the jurisdiction of the Commission in Court Session, the Commission may continue to deal with that matter as the Commission in Court Session if:(a) the Commission is duly constituted or reconstituted by a judicial member or members, and(b) any member who is not a judicial member does not take part in the proceedings on that matter, and(c) only such evidence given in the existing proceedings before the Commission as is admissible in evidence in proceedings before the Commission in Court Session is taken into account in determining that matter.(4) This section does not apply to criminal proceedings.
177 Commission may reserve decision
(1) The Commission may reserve its decision in any proceedings before it.(2) A reserved decision of a member or members of the Commission may be given:(a) by the member or members at a subsequent sitting of the Commission, or(b) if the decision of a member is set out in writing and signed by the member—by being delivered by a member of the Commission, or by the Industrial Registrar, at a time and place of which the parties have been given reasonable notice.
178 Commission divided in opinion
(1) If the members sitting as the Full Bench of the Commission are divided in opinion, the opinion of the majority is taken to be the decision of the Commission.(2) If the members are equally divided in their opinion, the opinion that prevails is:(a) the opinion of the President if the President is sitting, or(b) if the President is not sitting but the Vice-President is sitting—the opinion of the Vice-President, or(c) if the President and Vice-President are not sitting and only one Deputy President is sitting—the opinion of the Deputy President, or(d) if the President and Vice-President are not sitting and more than one Deputy President is sitting—the opinion of the senior Deputy President.
(1) Subject to the exercise of a right of appeal to a Full Bench of the Commission conferred by this or any other Act or law, a decision or purported decision of the Commission (however constituted):(a) is final, and(b) may not be appealed against, reviewed, quashed or called in question by any court or tribunal (whether on an issue of fact, law, jurisdiction or otherwise).(2) A judgment or order that, but for this section, might be given or made in order to grant a relief or remedy (whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise) may not be given or made in relation to a decision or purported decision of the Commission, however constituted.(3) To avoid doubt, this section extends to any decision or purported decision of the Commission, including an award or order of the Commission.
180 Contempt of Commission—offence
(1) A person in contempt of the Commission is guilty of an offence.Maximum penalty: 500 penalty units in the case of a corporation or, in any other case, 50 penalty units or imprisonment for 6 months, or both.
(2) For the purposes of subsection (1), conduct is a contempt only if the same conduct in relation to the Supreme Court would be a contempt of the Supreme Court.(3) Proceedings for an offence against this section may be taken only before the Commission in Court Session.
(1) Subject to the rules of the Commission and any other Act or law:(a) the Commission may award costs, and(b) costs are in the discretion of the Commission, and(c) the Commission may determine by whom and to what extent costs are to be paid, and(d) the Commission may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis.(2) However, the Commission when it is not in Court Session may award costs only in the following cases:(a) the Commission may award costs against an applicant if it considers that the application to it was frivolous or vexatious, or(b) the Commission may award costs against a party to proceedings who, in the opinion of the Commission, instituted proceedings without reasonable cause, or(c) the Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (Unfair dismissals) who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious, or(c1) the Commission may award costs against an industrial agent representing an applicant or employer in proceedings under Part 6 of Chapter 2 if:(i) the industrial agent fails to file a certificate as required by section 90A, or(ii) the Commission finds that the industrial agent has filed a certificate under that section certifying that the agent has reasonable grounds for believing, on the basis of provable facts, that the applicant’s claim or employer’s response to the claim had reasonable prospects of success when the agent did not have reasonable grounds for believing, on the basis of provable facts, that it had reasonable prospects of success, or(d) the Commission may award costs in proceedings for a breach of an industrial instrument or the recovery of money under Chapter 7, as provided by sections 357 and 373.(3) The Commission in Court Session may not award costs in proceedings for a contravention of a dispute order or in proceedings under Division 2 of Part 4 of Chapter 5 (Rules of industrial organisations).(4) In this section, costs includes:(a) costs of or incidental to proceedings in the Commission, and(b) in the case of an appeal to the Commission, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal.
181A Obligation to disclose costs to clients and Commission
(1) An industrial agent who represents a client in proceedings before the Commission must disclose to the client and the Commission in accordance with this section the basis of the costs of any industrial agent services provided by him or her in the proceedings.(2) The following matters are to be disclosed to the client and the Commission:(a) the amount of the costs, if known,(b) if the amount of the costs is not known, the basis of calculating the costs,(c) the billing arrangements,(d) any other matter required to be disclosed by the regulations.(3) A disclosure under the section is to be made at or before the commencement of the proceedings in which the industrial agent is representing the client.(4) A disclosure under this section must be made in writing and be expressed in clear plain language.(5) The disclosure may be made separately or in a costs agreement or in any other contract relating to the representation of the client in the proceedings.(6) A disclosure is not required to be made under this section when it would not be reasonable to require it.(7) The regulations may make provision for or with respect to:(a) the information to be disclosed under this section, and(b) when it would not be reasonable to require a disclosure to be made under this section.(8) If an industrial agent fails to make a disclosure to a client in accordance with this section of the matters required to be disclosed by this section in relation to costs, the client need not pay the costs of the representation.(9) An industrial agent who fails to make a disclosure in accordance with this section of the matters required to be disclosed by this section in relation to costs may not maintain proceedings for the recovery of the costs.(10) In this section:costs agreement means an agreement between a party to proceedings before the Commission (the client) and an industrial agent as to the costs of representing the party in the proceedings.
182 Recovery of amounts ordered to be paid (other than penalties)
(1) For the purposes of the recovery of any amount ordered to be paid by the Commission (including costs, but not including a criminal or civil penalty), the amount is to be certified by the Industrial Registrar.(2) A certificate given under this section must identify the person liable to pay the certified amount.(3) A certificate of the Industrial Registrar that:(a) is given under this section, and(b) is filed in the office of a court having jurisdiction to give judgment for a debt of the same amount as the amount stated in the certificate,operates as such a judgment.(4) To avoid doubt, an appeal lies to the Commission under Part 7 against any amount certified by the Industrial Registrar under this section.(5) To avoid doubt, an appeal lies to a Full Bench of the Commission under Part 7 against an order by the Commission for the payment of costs.
183 Regulations relating to fees
The regulations may make provision for or with respect to the fees to be charged in respect of the business of the Commission (including an Industrial Committee) and the payment of the expenses of witnesses or persons receiving a summons under this Act.
184 Power of entry of members of Commission and other authorised officers
(1) A member of the Commission, the Industrial Registrar or a person authorised in writing by a member of the Commission may at any time during working hours enter any premises in or in respect of which he or she has reasonable grounds to suspect that:(a) any industry is being carried on, or(b) any matter or thing is taking or has taken place in relation to which any industrial action is pending, or(c) any industrial instrument has been or is to be made,and may inspect and view any work, material, machinery, appliance, articles, book, document or other record there.(2) Any such person does not have authority to enter any part of premises used for residential purposes, except with the permission of the occupier.(3) A person who hinders or obstructs a member of the Commission, the Industrial Registrar or any authorised person in the exercise of any power conferred by this section is guilty of an offence.Maximum penalty: 100 penalty units.