Division 3 Conciliation of disputes by conciliator
75A Division applies only to existing claims
This Division applies only in respect of existing claims.Note. Conciliation is not applicable to new claims. See Chapter 7 (New claims procedures).
(cf former s 95)
In this Division:Department means the Department of Industrial Relations.
dispute means a dispute in connection with a claim for compensation between:
(a) the person who makes the claim and the person on whom the claim is made (or the insurer on whom the claim has been served under section 66 (3) or to whom the claim has been forwarded under section 69), or(b) the person on whom the claim is made and that insurer.
77 Principal Conciliator and other conciliators
(cf former s 96)
(1) For the purposes of this Act, the Principal Conciliator is the person holding office as such in the Department under Part 2 of the Public Sector Management Act 1988.(2) For the purposes of this Act, a conciliator is:(a) the Principal Conciliator, or(b) a person holding office as such in the Department under Part 2 of the Public Sector Management Act 1988, or(c) a person holding any other office in the Department that is designated by the Department Head as a conciliator for the purposes of this Act, or(d) a person appointed under subsection (3).(3) The Governor may, on the recommendation of the Minister, appoint other suitably qualified persons to be conciliators for the purposes of this Act, to conciliate on disputes as and when required to do so by the Principal Conciliator. Schedule 6 has effect with respect to conciliators appointed under this subsection.(4) The Principal Conciliator can delegate to any conciliator any of the Principal Conciliator’s functions under this Part, except this power of delegation.(5) In the month of March (or such other month as the Minister may determine) in each year, the Minister is to prepare and forward to the WorkCover Authority an estimate of the expenditure to be incurred by the Department in relation to the exercise of the functions of the Principal Conciliator and other conciliators, including the remuneration payable to them.
78 Referral of disputes for conciliation
(cf former s 97)
(1) Any party to a dispute may refer the dispute to the Principal Conciliator for conciliation by a conciliator.(2) The Compensation Court may at any stage of proceedings refer a matter in dispute between the parties to the Principal Conciliator for conciliation or further conciliation by a conciliator.(3) The Principal Conciliator is responsible for making arrangements as to the conciliator who is to conciliate in connection with a particular dispute or class of disputes.
(cf former s 98)
(1) A conciliator is to make all reasonable efforts to conciliate in connection with a dispute referred to him or her and to bring the parties to agreement having proper regard to relevant entitlements and liabilities under this Act.(2) The conciliator may do any one or more of the following things in connection with the dispute or any part of the dispute:(a) make such recommendations to the parties to the dispute as he or she considers appropriate,(b) in the case of a dispute to which Division 4 applies—give directions under that Division,(c) decline to make any recommendation or give any direction.(3) A conciliator may conciliate with respect to a dispute (and make or give relevant recommendations or directions) even though the dispute is pending determination in the Compensation Court, unless the Court otherwise orders.
79A Exchange of information before conciliation
(1) A party (the applicant) to a dispute who refers the dispute for conciliation must, at the time it is referred, provide the following material to the Principal Conciliator:(a) a list identifying the documents on which the applicant proposes to rely in connection with the conciliation of the dispute,(b) a list identifying all other documents that the applicant has that are relevant to the dispute,(c) such other documents or information as the regulations may require the applicant to provide.(2) The applicant must also provide that material to the other party (the respondent) to the dispute at or before the time the dispute is referred for conciliation.(3) Within 7 days after the applicant provides that material to the respondent, the respondent must provide the following material to the applicant and to the Principal Conciliator:(a) a list identifying the documents on which the respondent proposes to rely in connection with the conciliation of the dispute,(b) a list identifying all other documents that the respondent has that are relevant to the dispute,(c) such other documents or information as the regulations may require the respondent to provide.(4) A party to a dispute who fails without reasonable excuse to comply with a requirement of this section is guilty of an offence.Maximum penalty: 50 penalty units.
(5) A document that a party to a dispute has failed to identify in a list provided as required by this section (being a document that the person has when the list is required to be provided) is not admissible on behalf of the party in proceedings on such a dispute before a conciliator or the Compensation Court.(6) Subsections (4) and (5) do not apply if the party is a worker unless it is established that the worker was represented by a legal practitioner or agent (as defined in section 131) at the relevant time.(7) The regulations may provide for exceptions to subsection (5). In particular, the regulations may authorise a conciliator or the Compensation Court to permit the admission in proceedings before the conciliator or Court in specified circumstances of a document that would otherwise be not admissible under that subsection.(8) If a conciliator is satisfied that a party to a dispute has failed without reasonable excuse to comply with a requirement of this section, the conciliator may:(a) refer the matter to the Authority, and(b) note the matter in a conciliation certificate issued by the conciliator in respect of the dispute (together with details of the documents to which the failure relates).Note. Examples of the documents to which this section applies are medical reports, investigators’ reports, rehabilitation providers’ reports and reports of assessments under section 40A (Assessment of incapacitated worker’s ability to earn) of the 1987 Act.
80 Power of conciliator to require information
(cf former s 98A)
(1) A conciliator may give a direction in writing to a party to a dispute referred to the conciliator requiring the party:(a) to produce to the conciliator or to another party to the dispute, at a time and place specified in the direction, specified documents in the possession of the party, being documents that the conciliator considers relevant to the dispute concerned, or(b) to furnish specified information to the conciliator or to another party to the dispute within a time specified in the direction, being information that the conciliator considers relevant to the dispute concerned.(2) If a dispute in respect of a claim for weekly payments of compensation has been referred for conciliation by the worker and the person on whom the claim was made has or claims to have a reasonable excuse for failing to commence the weekly payments (or the balance of weekly payments in dispute) within 21 days after the claim was duly made, the information that a conciliator can require that person to furnish includes details of that excuse.(3) A conciliator must not give a direction under this section to a worker unless the conciliator is satisfied that the worker will be represented by a legal practitioner at a conciliation conference on the dispute.(4) A direction under this section can extend to copies of documents lodged or produced in proceedings before the Compensation Court unless the Court otherwise orders in those proceedings.(5) A person who fails without reasonable excuse to comply with a direction given to the person under this section is guilty of an offence.Maximum penalty: 50 penalty units.
(6) If a person fails without reasonable excuse to produce a document or furnish information in compliance with a direction given to the person under this section, the person cannot as a party to proceedings before the Compensation Court or a conciliator have the document or information admitted into evidence in the proceedings unless the Court or the conciliator otherwise orders in the special circumstances of the case. This subsection does not apply to a worker unless the worker was represented by a legal practitioner at the time of the failure.(7) The regulations may make provision for or with respect to any of the following matters:(a) excepting specified kinds of information or documents from the operation of this section,(b) specifying cases and circumstances in which a conciliator is required to exercise the conciliator’s powers under subsection (1).
81 Power of conciliator to provide information and documents to a party
(cf former s 98AA)
(1) When information or documents are furnished or produced to a conciliator by a party to a dispute (whether or not pursuant to a requirement under this Act), the conciliator may furnish or produce the information or documents to any other party to the dispute.(2) The regulations may make provision for or with respect to any of the following matters:(a) specifying cases and circumstances in which a conciliator is required to exercise the conciliator’s powers under subsection (1),(b) excepting specified kinds of information or documents from the operation of this section,(c) specifying circumstances in which information or documents furnished or produced to a conciliator may not be furnished or produced by the conciliator to another party to the dispute.
81A Parties to conciliation to provide copies of documents before conciliation conference
(1) At least 7 days before a conciliation conference on the dispute, each party to the dispute must provide to the other party and to the conciliator a copy of any documents on which the party proposes to rely in connection with the conciliation of the dispute.(2) A party to a dispute who fails without reasonable excuse to comply with a requirement of this section is guilty of an offence.Maximum penalty: 50 penalty units.
(3) Subsection (2) does not apply if the party is a worker unless it is established that the worker was represented by a legal practitioner or agent (as defined in section 131) at the relevant time.(4) Any document that a party has that is not provided by the party as required by this section is not admissible on behalf of the party in proceedings on such a dispute before a conciliator or the Compensation Court.(5) The regulations may provide for exceptions to subsection (4). In particular, the regulations may authorise a conciliator or the Compensation Court to permit the admission in proceedings before the conciliator or Court in specified circumstances of a document that would otherwise be not admissible under that subsection.(6) If a conciliator is satisfied that a party to a dispute has failed without reasonable excuse to comply with a requirement of this section, the conciliator may:(a) refer the matter to the Authority, and(b) note the matter in a conciliation certificate issued by the conciliator in respect of the dispute (together with details of the documents to which the failure relates).(7) Nothing in this section affects any power of the conciliator under section 80 (Power of conciliator to require information) or 81 (Power of conciliator to provide information and documents to a party).Note. Examples of the documents to which this section applies are medical reports, investigators’ reports, rehabilitation providers’ reports and reports of assessments under section 40A (Assessment of incapacitated worker’s ability to earn) of the 1987 Act.
82 Summons to appear at conciliation conference
(cf former s 98B)
(1) The Principal Conciliator may issue a summons requiring the attendance of a party to a dispute at a conciliation conference (as defined in section 90) on the dispute if the Principal Conciliator is satisfied that the party has failed without reasonable excuse to comply with a request by a conciliator to attend a conciliation conference on the dispute.(2) The Principal Conciliator must not issue a summons under this section requiring the attendance of a worker at a conciliation conference unless satisfied that the worker will be represented by a legal practitioner at the conciliation conference.(3) A person must not fail without reasonable excuse to comply with a summons served on the person under this section.Maximum penalty: 50 penalty units.
83 Role for conciliator in preparing for medical panel
(cf former s 98C)
(1) When a dispute referred to a conciliator concerns compensation payable under section 66 of the 1987 Act and it appears to the conciliator that any issues in dispute may be appropriate for referral to a medical panel, the conciliator can take such steps as may be necessary or desirable for the purpose of ensuring that the matter is properly prepared for referral to a medical panel.(2) The conciliator can assist any party with respect to the making of an application under section 122 for referral of a medical dispute to a medical panel.(3) The conciliator can refer a completed application to the Principal Conciliator for forwarding on to the registrar of the Compensation Court, and any such application is taken to have been made by the party or parties on whose behalf it was forwarded to the registrar.
84 Certificates as to conciliation of disputes
(cf former s 98D)
(1) A conciliation certificate is a certificate referred to in subsection (5) that is issued by a conciliator with respect to the conciliation of a dispute free of charge to the parties to the dispute.(2) A conciliator is to issue a conciliation certificate for a dispute only when directed to do so by the Principal Conciliator.(3) The Principal Conciliator must direct the issue of a conciliation certificate as to the matters referred to in subsection (5) (a) and (b) if any person who is or has been a party to conciliation of the dispute applies for such a certificate.(4) The Principal Conciliator may, either on the recommendation of the conciliator or on his or her own initiative, refer a conciliation certificate to the registrar of the Compensation Court to form part of any file of the Court on proceedings commenced, or that may later be commenced, in relation to the dispute concerned.(5) A conciliation certificate is a certificate as to such of the following matters as the Principal Conciliator directs:(a) whether a dispute with respect to a claim under this Act is or has been the subject of conciliation under this Division,(b) the date of referral of the dispute to conciliation,(c) the current position (as at the date of the certificate) with respect to conciliation of the dispute,(d) any final outcome of the conciliation (including, if applicable, matters identified as remaining in dispute at the conclusion of the conciliation),(e) if conciliation was unsuccessful (wholly or partially) the reasons for that,(f) whether (and, if so, how) a particular party to the dispute has unreasonably failed to participate in conciliation,(g) if the worker has unreasonably failed to participate in conciliation, whether the amount of the conciliation costs payable by the employer should be reduced and, if so, by what amount.(6) A conciliation certificate is evidence of the matters that it certifies.
85 Time within which disputes must be referred to conciliation
(cf former s 98E)
The regulations may make provision for or with respect to limiting the time within which a dispute in respect of a claim can be referred for conciliation under this Division.
86 Agreements arising from conciliation
(cf former s 98F)
(1) If the conciliation of a dispute under this Division gives rise to an agreement between the parties, the conciliator may assist the parties in drafting written terms of agreement or in completing any approved standard form of agreement.(2) If the agreement relates to compensation under section 66 or 67 of the 1987 Act, the conciliator can refer the agreement to the Principal Conciliator for forwarding on to the Authority to be registered under section 66A of the 1987 Act. An application for registration of the agreement under section 66A of the 1987 Act is then taken to have been made by a party to the agreement.(3) If the agreement relates to other compensation, it may, with the consent of the parties, be registered by the Principal Conciliator.(4) The following are examples of the provisions that an agreement arising from conciliation of a dispute can contain:(a) provision for the employer or insurer to continue to pay compensation for a specified minimum period subject to compliance by the worker with specified conditions,(b) provisions to cover matters such as the supply of medical certificates certifying as to incapacity and requirements for participation by the worker in the employer’s return-to-work program, rehabilitation training or other specified activities designed to assist the worker to return to work,(c) provisions designed to avoid or minimise further disputes between the parties, such as provisions requiring the parties to communicate with the conciliator concerning any dispute or potential dispute,(d) provision for a review of the agreement at a specified time, either by the parties alone or in consultation with the conciliator,(e) provisions designed to deal with any further disputes that might arise, so as to resolve them quickly while keeping costs to a minimum.
87 Control and direction of conciliators
(cf former s 99)
(1) A conciliator is not subject to control and direction by the Authority, the appropriate Department Head or any other public servant with regard to any of the decisions of the conciliator that affect the interests of the parties to the dispute and the Authority, appropriate Department Head or other public servant may not overrule or interfere with any such decision of the conciliator in respect of any such dispute.(2) Subject to subsection (1), conciliators are, in the exercise of their functions, subject to the general control and direction of the Principal Conciliator.(3) Subsection (1) does not prevent the making of arrangements for the training of conciliators, and does not prevent conciliators obtaining advice, to ensure consistently correct application of the provisions of this Act and the regulations.(4) Conciliators are subject to guidelines issued by the Principal Conciliator with respect to the procedures to be followed in the conciliation of disputes, being guidelines issued for the purpose of achieving consistency in the application of the provisions of this Act and the regulations. Any such guidelines are subject to the regulations under section 91.(5) This section does not affect the exercise of the functions of the appropriate Department Head under the Public Sector Management Act 1988 with respect to conciliators.
(1) In this section:conciliation costs means the following costs incurred in conciliating a dispute under this Division:
(a) the costs for legal services provided to a worker (or other claimant) in connection with any such conciliation,(b) the costs of services provided to a worker (or other claimant) of an agent acting in that capacity in connection with any such conciliation.conciliation disbursements means disbursements in relation to the services referred to in the definition of conciliation costs in this subsection.
(2) The conciliation costs in a dispute are payable by the employer unless the Principal Conciliator reduces the amount payable by the employer on the basis of a recommendation in a conciliation certificate. The regulations may fix the maximum amount of conciliation costs in a dispute that are payable by the employer.(3) Conciliation costs are payable at the end of the conciliation proceedings concerned, regardless of outcome.(4) The regulations may make provision for or with respect to the following:(a) requiring all or any conciliation disbursements to be paid by the employer,(b) fixing the maximum amount of conciliation disbursements that are payable by the employer,(c) requiring the payment of conciliation disbursements at the end of the conciliation proceedings concerned, regardless of outcome.(5) A requirement imposed by or under this section may be enforced as if it were a requirement of an order for the payment of costs made by the Compensation Court under section 112.
(cf former s 100)
(1) A matter or thing done or omitted to be done by a conciliator in the exercise of the conciliator’s functions does not, if the matter or thing was done or omitted in good faith, subject the conciliator personally to any action, liability, claim or demand.(2) A conciliator is, in any legal proceedings, competent but not compellable to give evidence or produce documents in respect of any matter in which he or she was involved in the course of the exercise of his or her functions as a conciliator (including as to matters in a conciliation certificate issued by a conciliator).
90 Proceedings before conciliators
(cf former s 100A)
(1) In this section, conciliation conference means any conference or other proceeding held with or before a conciliator:(a) to resolve a dispute referred for conciliation, or(b) for the purpose of giving directions under Division 4 in connection with any such dispute.(2) A person who is a party to any dispute referred for conciliation is entitled to be represented by a legal practitioner, and by an agent of such a class as may be prescribed by the regulations. The conciliator may however refuse to permit a party to be represented by an agent if of the opinion that the agent does not have sufficient authority to make binding decisions on behalf of the party.(3) A party to a dispute at a conciliation conference is entitled to such representation or assistance (for example, the assistance of an interpreter) as may be necessary to enable the party to adequately communicate at the conciliation conference.(4) A conciliator must take into account any written submission prepared by a legal practitioner acting for a party to the dispute and submitted by or on behalf of the party (whether or not the party is represented by a legal practitioner at a conciliation conference on the dispute).(5) A conciliator may, subject to any general directions by the Principal Conciliator:(a) hold a conciliation conference with all relevant parties in attendance and, if the conciliator considers appropriate, with the employer (in the employer’s own right, even if the employer is represented by an insurer) and with relevant health professionals and rehabilitation service providers in attendance, or a separate conciliation conference in private with any of them, and(b) in a case where the employer concerned is represented by an insurer—nevertheless communicate directly with the employer about the provision of suitable employment for the worker or any other matter connected with the dispute.(6) If the conciliator is satisfied that sufficient information has been supplied to him or her in connection with a dispute, the conciliator may exercise functions under this Division and Division 4:(a) without holding any conciliation conference or formal hearing, and(b) without requesting submissions from the parties to the dispute.(7) A person who, in connection with a dispute referred for conciliation, makes a statement that the person knows to be false or misleading in a material particular is guilty of an offence.Maximum penalty: 50 penalty units.
(8) In proceedings before the Compensation Court, evidence of a statement made during any conciliation conference is not admissible unless the person who made the statement agrees to the evidence being admitted.(9) An agreement that arises from the conciliation of a dispute under this Division is not admissible in proceedings before the Compensation Court, except:(a) when the parties to the agreement otherwise agree, or(b) in such circumstances as the regulations may specify.
(cf former s 100C)
The regulations may make provision for or with respect to the exercise of a conciliator’s functions under this Division and Division 4 and, in particular, for or with respect to:(a) the manner in which disputes are to be referred for conciliation, and(b) excluding disputes (other than disputes to which Division 4 applies) from this Division.