Commission may determine own procedure

Cases

Commission may determine own procedure

The New South Wales Industrial Relations Commission "has the ability as a necessary incident of the exercise of its jurisdiction to order its own procedure in accordance with due process."

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The New South Wales Industrial Relations Commission "has the ability as a necessary incident of the exercise of its jurisdiction to order its own procedure in accordance with due process."

The above statement was made in response to an employer’s appeal to the Full Bench against an order for payment to an employee of moneys due in respect of unpaid wages and annual leave (Maldoc Pty Ltd v Bollard; Matter No IRC2710 of 1997).

The employer had not complied with a previous order of the Commission even though it failed to obtain a stay of that order. A motion was put by the employee that the employer’s appeal should not be heard until the existing order had been complied with. The employer submitted that the Commission did not have the statutory power to refuse to hear the appeal.

The Commission held that:

"...the [employer’s] primary basis for objection to the motion is misconceived in that the motion does not seek to prevent the hearing of the appeal, but rather the time when the appeal should be heard. In other words, the motion is concerned with ‘procedure’ and not with a question of ‘substantive power’."

The New South Wales Industrial Relations Act 1996(s162(1)) allows the Commission to "determine its own procedure" and more specifically, the Commission can "adjourn proceedings to any time and place" (s162(2)(g)).

The Commission determined that it would support the employee’s motion to adjourn the appeal on the basis that an order of the Commission had not been complied with.

"The Commission should not and will not be seen to lend its process to a party abusing that very conduct. Accordingly, we do not propose to hear the appellant further until it has regularised its conduct."

 
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