AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AMENDMENT RULES 2003 (NO. 1) 2003 NO. 6

Commonwealth Numbered Regulations - Explanatory Statements

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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AMENDMENT RULES 2003 (NO. 1) 2003 NO. 6

EXPLANATORY STATEMENT

STATUTORY RULES 2003 No. 6

Australian Industrial Relations Commission Amendment Rules 2003 (No. 1)

(Issued by the Authority of the President of the Australian Industrial Relations Commission)

Authority

Section 48 of the Workplace Relations Act 1996 (the Act) authorises the making of the rules of the Australian Industrial Relations Commission (the Commission).

Under subsection 48(1) of the Act the President of the Commission by signed instrument, after consultation with members of the Commission, may make rules, not inconsistent with the Act, with respect to:

(a) the practice and procedure to be followed in the Commission; or

(b) the conduct of business in the Commission;

and, in particular:

(c) the manner in which, and the time within which, applications, submissions and objections may be made to the Commission; and

(d) the manner in which applications, submissions and objections may be dealt with by the Commission.

Moreover, subsection 4(1) of the Act states:

" 'prescribed' includes prescribed by Rules of the Commission made under section 48;"

Purpose

A number of amendments have been made to introduce the capacity to lodge documents electronically and to simplify and clarify the completion of statutory declarations which are required to be lodged with applications for certification of agreements. In addition, provision for the giving of security for the payment of costs in termination of employment matters has also been introduced.

Details

The President of the Commission, after consultation with members of the Commission, has made amendments to the Rules to the following effect:

Rule 1 is a formal provision stating the name of these Rules.

Rule 2 provides that these Rules commence on 1 March 2003.

Rule 3 is a formal provision, providing that the Australian Industrial Relations Commission Rules are amended as set out in these Rules.

Schedule 1

Item 1 - Rule 4 (Seals of Commission)

New subrule 5 provides for the affixation of the Seal by electronic means on documents requiring the seal to be affixed.

Item 2 - Rule 5 (Forms)

Consequential amendment arising from the amendment to the title of the Schedule.

Item 3 - Rule 11 (Appeals to Full Bench)

New paragraph (1)(c)(ii) requires each written submission in the proceedings related to the grounds of appeal to be lodged with the appeal.

Item 4 - Rule 25 (Application for order to stop or prevent industrial action)

In conjunction with item 5, amendment to better particularise the persons upon whom service of the application and the completed notice of hearing is required.

Item 5 - Rule 25 (Application for order to stop or prevent industrial action)

New sub rule (4) to better particularise the persons upon whom service of the application and the completed notice of hearing is required.

Item 6 - Rule 44 (Issue of certificate under section 170CF of the Act)

Consequential amendment to title of Rule arising from amendment in Item 7.

Item 7 - Rule 44 (Issue of certificate under section 170CF of the Act)

References to subsection (2) of section 170CF removed since certificate can now also be issued in reference to subsection 170CF(4) as well where the Commission concludes the applicant has no reasonable prospect of success at arbitration in relation to the ground that the termination was harsh, unjust or unreasonable.

Item 8 - Rule 45 (Election to proceed to arbitration or to begin court proceedings)

Consequential amendment to maintain consistency with Rule 44 (see Item 7).

Item 9 - Rule 47A (Security for the payment of Costs)

Subrule (1) allows the Commission, on application, to make an order for security for the payment of costs in relation to an application under section 170CE or who began proceedings in relation to such an application.

The subrule indicates that such an order would not ordinarily be made prior to the conclusion of any conciliation proceedings.

Subrule (2) provides that an application must be made using the Form provided in the Rules.

Subrule (3) allows the Commission to provide the time, manner and form of any such security it orders.

Subrule (4) allows the Commission to vary the details of any such security it orders.

Subrule (5) allows the Commission, where an order to provide security of costs has been made, to stay the proceedings until security is provided or to dismiss the proceedings if security is not provided.

Subrule (6) does not allow a Member who has or is dealing with the application under section 170CE to exercise the power to order security of costs unless the Member has been directed to do so by the President (or a Presidential Member nominated in writing by the President).

Subrule (7) provides that the rule shall only apply to an application under section 170CE lodged on or after 1 March 2003 so as to avoid any retrospective effect.

Item 10 - Rule 48 (Application for certification of agreement between constitutional corporation, or the Commonwealth, and organisation of employees (section 170LJ of the Act)

Reference to section 170LL removed as rules now introduce a new application for agreements under section 170LL.

Item 11 - Rule 48A. Application for certification of a greeenfields agreement between constitutional corporation, or the Commonwealth, and organisation of employees (section 170LL of the Act)

Rule now requires a specific application to be made for an agreement under section 170LL. Other than the specific reference to section 170LL, rule replicates existing rule 48.

Items 12, 13 and 14 - Rule 49 (Application for certification of agreement between constitutional corporation, or the Commonwealth, and employees (section 170LK of the Act))

Subrule (2) amended to remove requirement for an organisation of employees who has notified employer that it wants to be bound by the agreement from lodging a statutory declaration with the application.

Subrule (3) amended as a result of incidental amendment to subrule (2). Subrule continues to require that notice of hearing be provided to an organisation of employees who has notified employer that it wants to be bound by the agreement.

Item 15 - Rule 49A (Notice by an organisation of employees that it wants to be bound by an agreement)

Rule provides for a notice by an organisation of employees that it wants to be bound by an agreement to be made in accordance with the Form provided in the Rules and that such a Form is to be accompanied by a statement showing how the requirements of the Act are satisfied.

Item 16 - Rule 66A (Application to terminate an Australian Workplace Agreement)

Rule provides for an application under subsection 170VM(3) of the Act for the Commission to terminate an Australian Workplace Agreement to be made in accordance with the Form provided in the Rules.

Item 17 - Rule 70A (Filing and Lodging Electronically)

Subrule (1) allows for the lodgment of any document required or permitted by the Rules to be done electronically.

Subrule (2) allows for a document to be lodged electronically either by submitting a web based form available of the Commission's Internet page or by emailing the document in accordance with subrule (3).

Subrule (3) prescribes the format and covering documentation necessary for documents sent by email in accordance with subrule (2)(b).

Subrule (4) allows for statutory declaration to be lodged electronically by sending an image of the statutory declaration.

Subrule (5) requires the Registar to send an acknowledgement of filing to the lodging party by email.

Subrule (6) provides that a document lodged electronically is taken not to have been filed until the acknowledgement of filing has been sent.

Subrule (7) provides that unless the Registry is advised to the contrary, any document lodged by the sender and requiring to be signed or stamped by the Commission or Registry and returnable to the lodging party will be returned electronically to the email address stated on the cover sheet.

Subrule (8) requires a person who sends a document by electronic communication to keep a paper copy of the document and to produce it as directed by the Commission

Subrule (9) provides that any paper copy produced as directed by the Commission must be endorsed with a statement that the copy is a true and correct copy of the document sent by electronic communication and the date and time the document was sent by electronic communication.

Subrule (10) requires the Registrar to publish which formats and specific email addresses will be accepted under the rule in the AIR Bulletin.

Item 18 - Rule 74 (Requirement to fix time and place for hearing)

New subrule (4) to provide that a party required to serve a notice on another party to the proceedings must serve the notice as soon as practicable.

Item 19 - Rule 74A (Electronic Signatures)

Subrule (1) allows for a document, other than a statutory declaration, to be signed by means of a facsimile of the signature.

Subrule (2) allows for a decision or determination under section 143 of the Act to be signed by a Member by means of a facsimile of the signature.

Item 20 - Schedule, heading

Amends the title of the Schedule

Items 21 and 22 - Form R9

Consequential amendment arising from amendment to Rule 25.

Item 23 - Form R24

Consequential amendment arising from amendment to Rule 44.

Item 24 - Form R26A

New Form arising from New Rule 47A.

Item 25 - Form R27

Consequential amendment arising from amendment to Rule 48.

Item 26 - Form R28

Form reformatted to simplify and clarify the completion of the statutory declaration.

Item 27 - Form R28A and Form R28B

New Forms arising from New Rule 48A.

Item 28 - Form R30

Form reformatted to simplify and clarify the completion of the statutory declaration.

Item 29 - Form R30A

New Form arising from New Rule 49A.

Item 30 - Form R32

Form reformatted to simplify and clarify the completion of the statutory declaration.

Item 31 - Form R35