Employment Commissions, Tribunals & Court Claims
Get the best advice if your matter has commenced in a Commission, Tribunal or Court
Information on Commissions, Tribunals & Court Claims.
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What are the Employment Commissions, Tribunals and Courts in Queensland?
In Queensland, there are several judicial forums which hear and determine employment related disputes.
The Fair Work Commission (FWC)
The most well know is the Fair Work Commission (FWC). Their coverage includes:
- Hearing and Determination of Unfair Dismissal Applications
Probably, the function for which it is most well known is its role in conciliating, hearing and determining unfair dismissal applications. To learn about unfair dismissal click here.
- Arbitration of General Protection Claims
It is also the first port of call for General Protections dismissal disputes. The FWC must conduct a mediation or conciliation between the parties. An Applicant is unable to pursue their claim, beyond the Fair Work Commission if the Fair Work Commission does not issue a certificate stating the parties have participated in mediation and that all reasonable attempts have been made to resolve the dispute. To learn about general protections click here.
- Approval of Enterprise Agreements
Before an Enterprise Agreement (EBA) can take effect it must be approved by the FWC. The FWC Commission can also hear and determined bargaining disputes, that is in the formation of an EBA also where parties covered by an EBA can have their disputes conciliated.
Our expert legal team can assist you with this and provide you with the legal advice you require. It is important that you act promptly given the strict time-frames which are in place.
- Conduct Reviews of Modern Awards
The FWC is responsible for conducting reviews of modern Awards. Awards are legal documents which detail minimum rates of pay and conditions of employment, and cover industries or job types. They may consider applications to vary or revoke an Award.
The FWC can assist with disputes about an Award.
Our lawyers can perform a review to ensure that as an employer, you are complying with any applicable Award, or provide you with legal advice in relation to any possible dispute involving an Award.
The Queensland Human Rights Commission (QHRC)
The Queensland Human Rights Commission (QHRC) deals with allegations that the provisions of the Queensland Anti-Discrimination Act 1991 have been contravened. This includes complaints involving discrimination, sexual harassment and vilification. Much like the FWC the QHRC will convene and conduct a conciliation conference with the intention of resolving the complaint by way of a mediated agreement between the parties.
However, unlike the Fair Work Commission, the QHRC will take up to 12 – 18 months from the date of the complaint to convene the conciliation conference. There is a legal obligation on employers to provide workplaces free from discrimination, sexual harassment, victimisation and vilification. Employers need to take reasonable steps to prevent or minimise these behaviours in the workplace. If an employer does not comply, they can be held legally liable. Discrimination can also cost businesses time and money, damage morale, reduce productivity and undermine business reputation.
Our legal team at Queensland Workplace Law are here to assist with such matters and provide you with any advice you require.
Queensland Civil and Administrative Tribunal (QCAT)
If an agreement cannot be reached at the QHRC a discrimination complaint can be heard and determined before a member of the Queensland Civil and Administrative Tribunal (QCAT).
QCAT is also the first point for professional conduct matters to be contested. QCAT can hear and determine professional conduct matters, such as the conduct of teachers, lawyers and medical practitioners.
QCAT can sit at any of the local Magistrates Courts in Queensland.
Our lawyers at Queensland Workplace Law’s are experienced in such matters and are available to assist. We can help to collect and prepare evidence, documents, write submissions and prepare you for the QCAT hearing which will determine the matter.
The Queensland Industrial Relations Commission (QIRC)
The Fair Work Act applies to private corporations, employment law matters relevant to Queensland government employees and Queensland local government employees are set out in the Queensland Industrial Relations Act. Much like the role that the Fair Work Commission performs in employment matters for private corporations, the Queensland Industrial Relations Act Commission (QIRC) performs an identical role for employees of the Queensland government and Queensland local governments.
Unlike The Fair Work Commission, the QIRC also hears matters under the Queensland Workers Compensation & Rehabilitation Act.
The QIRC hears matters in locations throughout Queensland.
The Office of Industrial Relations (OIR)
The Office of Industrial Relations (OIR) includes Workplace Health and Safety Queensland, Electrical Safety Office, Workers’ Compensation Regulator and Industrial Relations.
- Workplace Health and Safety Queensland
Workplace Health and Safety Queensland (WHSQ) are responsible for improving work health and safety and helping to reduce the risk of workers being killed or injured on the job. This department enforces work health and safety laws, investigates workplace fatalities, serious injuries, prosecutes breaches of legislation and educates employees and employers on their legal obligations.
- Electrical Safety Office
The Electrical Safety Office is responsible for the delivery of electrical safety devices in Queensland, and develops and enforces standards for electrical safety, and promotes improved safety performance across the country including:
- Advisory and enforcement activities to promote compliance with electrical safety laws and standards;
- Information, education and training activities to help reduce the risk of death and injury from electrocution, fire and explosion and improve electrical safety;
- Managing registration, licensing, approval (electrical equipment) and accreditation regimes.
- Workers’ Compensation Regulator
The Workers’ Compensation Regulator can review and has the ability to overturn a decision of Work Cover Queensland. Should a statutory Work Cover matter remain in dispute a claimant and an employer can contest a decision of the Workers’ Compensation Regulator in the Queensland Industrial Relation Commission.
Our team at Queensland Workplace Law is highly experienced in liaising with the Office of Industrial Relations and ensuring that your business is best protected when it comes to workplace matters and compliant with the applicable industrial relations laws.
The Federal Circuit & Family Court of Australia (Division 2)
The Federal Circuit and Family Court of Australia (FCFCOA) (Division 2) is constituted as a court and is overseen by Judges. Under the Fair Work Act unfair dismissal claims can only be heard and determined by the Fair Work Commission, in the absence of an agreement between the parties a General Protections matters can only be heard and determined by either the (FCFCOA) (Division 2) or the Federal Court of Australia.
In a Commission, it is common for a corporation to represent itself. However, under the rules of the FCFCOA a company must be represented by a lawyer. The matters that are primarily heard and determined by the FCFCOA are general protections applications and non-payment or underpayments of Awards.
Our team at Queensland Workplace Law are highly experienced in FCFCOA matters and able to assist you in any claim brought pursuant to the Fair Work provisions.
The Federal Court of Australia
The Federal Court also has the jurisdiction to hear and determine general protection claims and underpayment claims. However, unless the matter involves a certain level of complexity, the starting point ought to be the FCFCOA.
Unlike the FCFCOA the FCA has the sole jurisdiction to hear and determine appeals from the FCFCOA, whistleblower claims made under the Corporations Act and representative proceedings (Class Actions) including industrial law class actions.
The Industrial Court of Queensland
The Industrial Court of Queensland is a superior court of record and hears appeals from the Queensland Industrial Relations Commission (QIRC), Industrial Registrar or an Industrial Magistrate. The Court is comprised of the President, Vice President or the Deputy President.
The President of the Court is also the President of the QIRC, and the President may preside on a Full Bench of the Commission and, for certain matters, the Full Bench must include the President.
An appeal can be made to the Court of Appeal against a decision of the President. The Court of Appeal will also hear an appeal against the Full Bench which included the President.
If an appeal is made against a decision, it must be done so within the appeal period, being 21 days from the date the decision of the QIRC was issued. Should the appeal be filed after the 21 days have passed, an application needs to be made seeking an extension of time.
Accordingly, there are strict time-frames in place, and therefore, it is important that you seek accurate legal advice. Our legal team at Queensland Workplace Law are experienced in dealing with matters before the Industrial Court of Queensland, and are available to assist your business to obtain the best possible outcome.
The Supreme Court of Queensland.
The Supreme Court of Queensland is the highest court in Queensland and includes a trial division and the Court of Appeal. The trial division of the Supreme Court hears the most serious criminal and civil cases and the Court of Appeal hears appeals from lower courts.The Supreme Court will hear civil cases involving amounts over $750,000.
In a civil trial, a judge of the Supreme Court will make all decisions, including any orders that one party pay another party or an order to perform certain actions to rectify a problem.
On the rare occasion, a civil trial may be held with a jury of four people who answer any question of fact put to it by a judge.
During a civil trial, each party presents its case, the plaintiff or applicant first, followed by the defendant or respondent. Each party will call witnesses to support their case, who may be questioned (cross-examined) by both sides. The judge will then decide if the case has been proven and provides a judgement. There is no guilty or not guilty verdict in a civil matter.
A party may appeal a Supreme Court decision to the Court of Appeal on various grounds, for example, if new evidence has come to light or there is a belief that the judge has made an error of law, affecting the outcome.
As the Supreme Court is a formal court of law and strict time-frames and rules apply to any proceeding brought before it.
Our team at Queensland Workplace Law are experienced in dealing with matters before this Court and can assist your business to be well prepared. We will provide accurate legal advice, assist with document preparations and evidence gathering and work closely with you to ensure that your business obtains the best possible outcome.
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Is It a Good Idea to Obtain Legal Advice before I go to a Commission, Tribunal or Court?
Yes, if you have received a claim against your business or company, we would strongly encourage you to contact us for advice on the best way to move forward with the matter. These matters can be complex, and our expert lawyers can give you accurate advice, tailored to the type of claim which has been brought against you.
We can establish if there is merit to the claim, discuss the options available to you and the likely outcomes.
We can also prepare any material required on your behalf, we can correspond with the person or entity who has brought the claim against you, we can try and reach a settlement agreement with that person or entity outside of the Court forum if it is the best option (for example, it will minimise your costs and the risk involved), and we can appear on your behalf should the matter proceed to a hearing before the Court.
Is it a Good Idea to be Represented?
Yes, employment matters can be complex and our team is experienced in representing employers in Employment Commissions, Tribunals and Courts in Queensland. Through representation by one of our expert lawyers, we will ensure that your business has a solid position and negotiates effectively, based on a strong understanding of the law relating to the
matter. We will also be able to advise you of the cost implications when appearing before a Commission, Tribunal and Court, as it can be expensive to a business and there are risks involved.
Our highly experienced legal team will work with you to obtain the best possible result for your business.
What is it Like in a Commission, Tribunal or Court?
Attending a Commission, Tribunal or Court can be very stressful. They are a formal place, and a hearing before them requires a business or entity to be extremely well-prepared. There may be a requirement for a business owner to provide oral evidence and be cross- examined on that evidence.
Our supportive legal team will ensure that you are well prepared to appear before a Commission, Tribunal or Court, and minimise any stress involved with this process.
What is Expected of Employers?
It is essential that any claim brought against you is considered as early as possible, and the claim is simply not ignored by you. There can be strict time-frames which need to be met, particularly when a matter is brought before a Commission, Tribunal or Court
Therefore, it is essential that you contact one of our experienced lawyers as soon as you receive notification of a claim. We will ask you to provide us with all information and documentation relevant to the matter so that we can consider this and provide you with accurate legal advice.
What is Likely to Happen?
What are Directions?
A Court, Commission or Tribunal in a civil matter will give instructions to the parties on how they are to prepare the case. These instructions are known as “Directions”. They often are provided by way of a “Directions Hearing” and set in place a court timetable to progress a case along. They might tell the parties when a defence needs to be filed, when they need to exchange written submissions and/or evidence or hear preliminary issues such as requests for documents to be produced, or to move the case to another court. The court may also direct parties to attend alternative dispute resolution such as court-ordered conciliation or mediation, if they have not already done so.
There may be several directions hearings throughout the life-time of a matter, and the central purpose of a directions hearing is so that the court can direct and monitor the progress of the case.
It is important to be well prepared for a Directions Hearing including knowing your case, being clear on the compensation you are seeking, being aware of what you want the next steps to be, knowing the applicable rules and practice notes (different courts will have different systems and processes), and communicating with the other party so that you can come to the court on the same pages as to how the proceedings will be run.
What are Pleadings?
Pleadings are the formal documents which a party must file at the beginning of a case, and typically include a Statement of Claim (lodged by the party making the claim) and a Defence (lodged by the party defending the claim). A pleading is a statement of a material fact that is relevant to the claim and the cause of action that is being pursued. It is usual for an Applicant/Plaintiff to prepare and file a statement of claim and for a Defendant/Respondent to prepare and file a defence.
Evidence – What is an Affidavit?
An affidavit is an account given a witness of certain events. Unlike other forms of written statements the contents of an affidavit is sworn or affirmed, essentially a process identical to a witness placing their hand on the bible immediately before giving evidence and giving an oral oath or affirmation that they swear to tell the truth. If a direction is made for you to file and serve and affidavit in an employment related dispute it would be a good idea to get assistance in preparing the affidavit.
Preparing an affidavit can be challenging, and our experienced team at Queensland Workplace Law are able to assist you with this.
What is mediation? Do I have to participate?
A mediation is a structured negotiation process in which an independent person, called a Mediator, assists the parties to a matter to identify and assess options and negotiate an agreement to resolve their dispute. This is an alternative to a judge imposing a decision on the parties.
Mediation can often many benefits over a trial by a judge, including the following:
- Time: usually a dispute can be resolved more quickly through Mediation rather than through a Trial.
- Cost: if a dispute can be resolved by way of Mediation, the costs of preparing and proceeding with a Trial can be avoided. For example, if a party is unsuccessful at a Trial, they may be ordered to pay the legal costs of the successful party.
- Flexibility: Mediation offers the parties to a matter more control over the outcome.A Mediation process can be customised to your needs with the Mediator.
- Stress: Mediation is less formal and less intimidating than appearing before a Court.
- Confidentiality: Mediation is a private process. The judge is not informed of contents of the Mediation and it is usually unable to be used against a party if the matter goes to Trial.
- Satisfaction: As the parties decide and agree on the outcome of their dispute, they are more likely to be satisfied with the result and to comply with the outcome that has been agreed.
- Finality: settlement agreements can usually only be modified with the agreement of all parties to the matter.
It is usually the case that parties will be ordered to attend Mediation, irrespective of a parties personal views of the other side. This of course can be an intimidating prospect, however, a well conducted mediation ought to put all the parties at ease and in a comfortable frame of mind. If one of the parties is a corporation then the corporation will need to be represented by a party who is authorised to negotiate and agree to a settlement on behalf of the corporation.
Our team at Queensland Workplace Law are highly experienced in mediations involving employment related disputes.
Possible Outcomes of Mediation
There are several possible outcomes to a Mediation. These include the following:
- A case may be settled in full;
- A case may be settled in part; or
- The parties may not be able to reach a settlement agreement.
If an agreement is reached by the parties in full or in part at the Mediation, the details of that agreement will usually be recorded and signed by all parties before the end of the Mediation.
If the dispute is settled in full at the Mediation, the Mediator will notify the judge that the matter has settled. The Mediator will not provide any specific details of any agreement made without the permission of the parties. Once the agreement between the parties is finalised, the parties will usually formally notify the Court that the case is not going to proceed any further and the case will be closed.
If the matter is not fully settled at Mediation, there may be a discussion about what needs to be done to prepare for a Trial and the matter will return to the judge. The Mediator will notify the judge of the outcome, but not the content of the Mediation. A clarification of the issues often occurs when a matter does not settle.
Should we be engaged to represent your business at the Mediation, our team of lawyers at Queensland Workplace Law will provide you with accurate advice and act on your behalf in the discussions which take place during the Mediation.
What is a Deed of Settlement & Release?
The effect of a Release is that the Applicant or Plaintiff agrees to give up their legal rights to pursue a Defendant/Respondent in exchange, usually for payment of a sum money. The document that outlines a settlement agreement made between the disputing parties to settle a dispute is usually referred to as a Deed, Deed of Release or Deed of Settlement & Release. In addition to granting a release from legal liability a comprehensive Deed ought to include confidentiality and non-disparagement clauses.
Our team at Queensland Workplace Law have a thorough understanding of Deeds, Deed of Release or Deeds of Settlement & Release and can ensure that this document is well prepared and that it captures the terms accurately.
How can an Obligation of Confidentiality be helpful to me and my business?
As the contents of a Mediation are confidential, it preserves privacy and protects sensitive information from becoming public. This means the parties can be open and honest at a Mediation, without the fear of any backlash.
This can build trust between the parties, as you can speak freely, knowing your statements stay in the room. This can be particularly important for a business, to preserve their reputation and ensure that any relationship with a party is maintained in the future, particularly if that party will remain connected with the business, such as an employee.
Furthermore, there may be trade secrets of a business which need to be concealed. A Mediation can help preserve this being a confidential forum.
If you are considering Mediation as an alternative to litigation, our team at Queensland Workplace Law are available to assist. We can provide you with accurate advice to ensure that your business achieves the best outcome.
What happens at a Trial?
The primary function of a trial is for witness to give evidence and cross examined and for a judge to make a determination as to where there is a conflict between competing events, whose evidence the Judge prefers and upon making findings of fact, applying those established facts to the law to determine whether the Applicant/Plaintiff has established their case.
The way a trial usually proceeds is as follows:
- The case is called before the Court;
- The Plaintiff or Applicant’s case is opened; witnesses can be called or the evidence can be by way of Affidavit (a formal, signed statement of a witness);
- The Defendant or Respondent’s case is opened; witnesses can be called or the evidence can be by way of Affidavit (a formal, signed statement of a witness);
- The Plaintiff or Applicant may respond;
- Each party may give final submissions;
- The Judge hands down a judgement.
The Judge must be satisfied at the Trial that the case has been made out on the “balance of probabilities.”
The Judge may hand down their judgement immediately following the Trial, but usually the Judge will reserve (postpone) his or her decision for a later date. Many judgements are published on a public website, and available for release to the media.
Our expert team at Queensland Workplace Law can provide your business with advice as to whether a Trial is the best way to proceed, particularly, given it can be adversarial and the contents of a Trial will be out in the public domain.
Will I have to take the stand and give evidence?
If you are a party to a matter, or called as a witness (for example, by way of a subpoena which compels the person named to appear in Court), then you will be required to take the stand and give evidence before a Court.
The evidence presented before the Court must be relevant, this means that its existence tends to indicate that one of the facts in issue is more or less likely.
The evidence can change the course of a case for or against you, which is why it’s especially critical to get it right. This can be stressful, and it is necessary to ensure that you are well prepared to provide evidence before a Court.
Our expert team at Queensland Workplace Law are available to assist. We have an abundance of experience in matters before the Court, and will ensure you are well prepared to provide evidence before a Court, should you be required to do so.
What is cross examination?
Whilst all witnesses will have the opportunity to give evidence, the opposing party will have the opportunity to ask questions of a witness, this is called Cross-examination. A Cross-examiner can ask leading questions, those are questions that suggest the answer.
The questions asked during cross-examination of a witness are limited to those subjects discussed, asked, or answered during the direct examination of the witness and leading questions (questions which suggest an answer in an of themselves, namely which put words into a the witness’ mouth) are permitted.
An effective cross-examination can reveal certain contradictions, raise doubt or even obliterate the prior testimony of a witness. However, when cross-examinations don’t go well, it can strengthen the credibility of a witness, or reinforce the party’s position.
Cross-examination can be a stressful process for any business owner, especially when it takes place before a Court. Our team at Queensland Workplace Law will ensure that you are well prepared for any cross-examination which may take place in your dispute.
Outcomes from a trial
There are a number of possible outcomes when a matter comes before a Commission, Tribunal or Court. A business or entity may be ordered to pay compensation, which can include economic compensation (such as compensation for remuneration loss), or non-economic compensation (for hurt, humiliation and distress). An order may be made to re-instate a person’s employment, maintain the continuity of a person’s employment, or maintain the period of a person’s continuous service with the employer.
As part of a court case, the judge might award the costs and fees of bringing the court case to the party that wins, this means that the judge may order that the unsuccessful party pay the successful party’s costs. These costs may include the successful party’s cost of filing the court action, the cost of serving the court documents and sometimes a portion of their legal representative’s fees.
It is important to keep in mind that most decisions of the Federal Court and Queensland courts are published electronically accessible.
Our expert team at Queensland Workplace Law will provide you with advice on the likely outcome/s after careful consideration of the claim which has been brought against your business or entity, and ensure that we work with you to achieve the best possible outcome for your business.
