Research & Information
Announcement - A New Rules Regime – What Does it all Mean?

2 February 2010

Introduction
From Monday, 1 February 2010 the Commission is operating under a new Rules regime. The Industrial Relations Commission Rules 1996 have been repealed and a new set of rules – the Industrial Relations Rules 2009 (the IR Rules) commence operation.

Generally, the IR Rules prescribe the procedure for matters that are unique to the jurisdiction. For example, the procedure for dispute notifications was set out in the old rules (Rules 24 – 29) and this procedure is picked up in the new rules (Part 5, Rules 5.1 – 5.5).

In relation to civil proceedings , the Commission has adopted the civil procedure set out under the Civil Procedure Act 2005 (CPA) and the Uniform Civil Procedure Rules 2005 (UCPR), however, local rules (the IR Rules) prevail (see UCPR Rule 1.7). Under the CPA civil proceedings are defined as proceedings other than criminal proceedings.

The guiding principles of the CPA are set out in section 57 of that Act:

    (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
    (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.
    (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.
    (4) A solicitor or barrister must not, by his or her conduct, cause his or her client to be put in breach of the duty identified in subsection (3).
    (5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs.

The adoption of the new procedures will strengthen the capacity of the Commission to comply with one of the objectives under the Industrial Relations Act 1996, that is, the resolution of industrial disputes (being the full gamut of civil matters that might be brought before the Commission) in a prompt and fair manner.

There are some provisions of the UCPR that will not apply to the Commission. For example, Part 6 of the UCPR – Commencing proceedings and appearance – will have no application, as the procedures for this are specifically excluded (Schedule 1 to UCPR) and are provided for under the IR Rules (Part 3: Commencement of Proceedings and Part 10: Appearance).

There are some provisions of the UCPR that will apply to the Court but not to the Commission. For example, Part 5 of the UCPR – Preliminary Discovery and Inspection – will apply to the Court but not to the Commission.

There are some provisions of the UCPR that will only apply in part or only where the Commission has determined that the provisions apply. For example, Part 21 of the UCPR – Discovery, Inspection and Notice to Produce – will apply to the Court but not to the Commission, except to the extent that the Commission orders that the Part is to apply. In relation to proceedings before the Court, UCPR Part 20 – Resolution of Proceedings without a Hearing – will not apply except for Division 4 of that Part – Compromise – but that Division will not apply until after conciliation has been attempted under s109 of the IR Act (in respect of unfair contract proceedings).

Schedule 1 to the UCPR applies the rules to all civil proceedings before the Court and Commission and lists the excluded provisions of the rules. The table below lists the excluded provisions of the rules as they relate to both the Court and the Commission as detailed in Schedule 1:

Industrial Court Industrial Relations Commission
Part 5
Part 6 Part 6
Part 16 Part 16
Part 17 – except to the extent that the Commission orders that the Part is to apply
Part 20 – except for Division 4 but Division 4 does not apply until after conciliation has been attempted under s109 of the IR Act Part 20
Part 21 – except to the extent that the Commission orders that the Part is to apply
Part 22
Part 23, Divisions 1 and 2 Part 23
Part 31, Division 1 except for 31.1, 31.2, 31.3, 31.4, 31.11, 31.12 and 31.16A
Part 31, Division 2
Part 34 – except to the extent that the Commission orders that the Part is to apply
Parts 37, 38 and 39 Parts 37, 38 and 39
Part 42, Division 2 Part 42
Part 43 Part 43
Parts 46
[ Note : The UCPR also applies certain provisions only to specific courts, for example, Part 48 applies to intellectual property cases in the Supreme Court and these provisions will have no application to the Commission.]

The CPA and UCPR will apply to existing and new proceedings brought before the Commission. It should be noted that the Court and the Commission have the power to dispense with the UCPR where it is appropriate to do so in the circumstances of the case (CPA s 14). There is also the power to make directions in respect of any aspect of practice that may not be covered by the UCPR (CPA s 16).

The Commission has remade Practice Directions under previous Rule 89 of the old Rules as Practice Notes under either the CPA or the IR Act. Click on this link to access. Practice Notes complement procedures set out under the relevant Acts and Rules.

Forms
It is the Commission’s intention to progressively transition to forms prescribed under the UCPR but in the interim parties should continue to utilise approved forms that are available on the Commission website. Click on this link to access those forms.

It is also the Commission’s intention that forms that remain specific to the jurisdiction will adopt the single column layout provided under the UCPR i.e. information is no longer included in the margin of the first page. Forms will be progressively updated on the Commission’s website and practitioners and other clients will be advised as this occurs.

Specific Provisions
Information detailed in the attached link in relation to the CPA and UCPR has been extracted (with some amendment and annotation) from a paper titled “Introduction to the Civil Procedure Act 2005 and Uniform Civil Procedure Rules 2005” available on the UCPR website . Generally, where the word court appears, it should be taken to mean the Industrial Court or Industrial Relations Commission.

Industrial Registrar
2 February 2010