Research & Information
Announcement - The Duties of Industrial Agents under the Industrial Relations Act 1996

16 April 2003

Amendments to the Industrial Relations Act 1996 which took effect in February 2003 impose a series of obligations on industrial agents representing applicants of respondent employers in unfair dismissal applications heard by the Industrial Relations Commission.

An "industrial agent' is defined as a person (other than a legal practitioner or an employee or officer of an industrial organisation) who represents a party in proceedings before the Commission for fee or reward (see Dictionary to the Industrial Relations Act 1996).

Section 90A

This section provides that an industrial agent must not represent an applicant in unfair dismissal proceedings where compensation is sought without filing a certificate with the Commission certifying that the agent has reasonable grounds for believing, on the basis of provable facts, that the applicant's claim has reasonable prospects of success.

Similarly, an agent must not represent an employer in such proceedings without first filing a certificate with the Commission certifying that the agent has reasonable grounds for believing, on the basis of provable facts, that the employer's response to the claim has reasonable prospects of success.

Costs

The Commission may award costs of the proceedings against the agent if the agent fails to file such a certificate (see s.181(2)(c1)(i)).

The Commission may award costs against the agent if it finds that the agent has filed such a certificate but did not have reasonable grounds for believing, on the basis of provable facts, that it had reasonable prospects of success (see s.181(2)(c1)(ii)).

Payment of Money

Orders made by the Commission for the payment of money (whether from an applicant to an employer or from an employer to an applicant) should not be made to an industrial agent unless the Commission specifically so directs.

If money is paid to an industrial agent, the order of the Commission is not discharged.
The person in whose favour the order was made could still sue the person against whom the order was made for the money involved, even though the latter has already paid money to the industrial agent (see s. 90B)

Obligation to disclose costs to clients and Commission

Section 181A provides that an industrial agent who represents a client in proceedings before the Commission must disclose to the client and the Commission the basis of the costs of the agent's services. The matters to be disclosed are the amount of the costs, if known, and if the amount is not known, the basis of calculating the costs and billing arrangements.

This disclosure is to be made at or before the commencement of proceedings and must be in writing. It may be made separately or in a costs agreement or in any other contract relating to the representation of the client.

An industrial agent who fails to make such a disclosure may not recover costs.

Costs Agreements

A costs agreement may not provide that costs are to be determined as a proportion of, or are to vary according to, the amount recovered ( s. 406A)

Schedule 4

These amendments do not apply in respect of proceedings commenced prior 1 February 2003.