19 May 2020
Over the past few weeks the number of COVID-19 cases in New South Wales has decreased rapidly and the Commonwealth and New South Wales Governments have turned their attention to a staged return to community and commercial activity.
Since 17 March 2020, the Industrial Relations Commission, like courts and other tribunals, has been able to continue to undertake its statutory functions using teleconference and videoconference facilities. The Commission is grateful for the speed with which parties adapted to these changed circumstances.
The Commission continues to follow the advice of the Commonwealth and New South Wales Departments of Health as it embarks on a staged reopening of the Commission's premises. Social distancing requirements will have an impact on the Commission's ability to return to pre-COVID-19 operations.
The Registry counter will reopen on 9 June 2020. Any person seeking access to the Registry in person prior to that date must obtain the leave of the Chief Commissioner.
Until 30 June 2020, the Commission will continue to accept the filing of applications and evidence as set out below by email to: email@example.com or in person. However, from 1 July 2020 email filing will only be accepted for dispute notifications and where specific directions have been made by the Commission; filing by email of other applications and evidence will not be available from that date. Parties who are unable to attend the Registry may file by post to PO Box 927 Parramatta NSW 2124. Parties should anticipate how long it will take for mailed documents to be received by the Registry.
When filing new applications, including notifying new disputes, parties must provide all contact telephone numbers for themselves and their representatives for the purpose of telephone conciliations and compulsory conferences. Parties should also provide phone numbers for the other party/ies where known.
When filing evidence such as statements and affidavits where the total number of pages is below 50 (for the matter, not per document) the Registry will accept filing by email. If the total number of pages is greater than 50, parties must file by post to PO Box 927 Parramatta NSW 2124.
The Commission will acknowledge receipt of emailed documents by return email. Parties will not receive a stamped copy of documents filed by email. The Commission will not send a copy of the documents to the other party/ies. It will remain for the party filing the documents to serve them on any other interested party.
In-person appearances at Commission Hearings
The Commission is working through options to enable in-person appearances in the Commission while social distancing requirements remain in place. The administration of justice and the health of all participants in the justice system remain the Commission's priorities.
The requirement that each person in an enclosed area has four square metres of space does not apply to the Commission. However, the Commission is guided by the principle that persons at the Commission be able to maintain a distance of 1.5 metres from all other persons. The Commission has applied this principle when determining the maximum number of persons at the bar table and in the gallery space in each of the Commission's Hearing Rooms. Space in front of the bar table allows for the Commissioner, monitor and a witness.
The square meterage and design of the Commission's Newcastle Hearing Room allow for a total of six people at the bar table and in the gallery space.
The square meterage and design of Hearing Rooms 2-5 in Parramatta allow for a maximum of four people at the bar table and in the gallery space.
The square meterage and design of Hearing Room 1 in Parramatta allow for a total of nine people at the bar table and in the gallery space.
The Commission must also consider the limited space available for parties to confer outside of the Hearing Rooms, particularly if multiple matters are listed on the same day at the Commission, and take into account the co-location of the Commission with the Fair Work Commission in Newcastle.
The Sheriff of NSW has been given powers to undertake additional safety–related tasks at the Commission including temperature testing. Parties may be required to submit to a non-contact temperature test or answer questions from the Sheriff before entering the Commission's premises.
The Commission has been using Virtual Courtroom (VCR) from the Parramatta Hearing Rooms in this period. This technology is not available in the Newcastle Hearing Room.
Given social distancing limitations are likely to remain in place for some time and the impact these have on the ability to undertake in-person hearings, the Commission continues to encourage, and may require, parties to use VCR for arbitrations.
The Commission requires parties with a matter listed or programmed for arbitration to confer as to whether their arbitration is unable to proceed by way of VCR.
If the parties consider that for particular reasons their matter is not suitable for VCR, they should request that the matter be listed for mention for the Commission to consider listing the matter for an in-person hearing. Parties should be mindful that the decision as to whether to proceed with VCR or an in-person hearing is the Commission's. Due to the social distancing limitations, if the Commission is satisfied that a hearing should take place in-person, parties should be aware that there may be a significant delay until this can occur.
Parties must confer prior to all in-person appearances as to the number of persons appearing for each party to ensure the total number of people attending a hearing does not exceed the maximum for the relevant Hearing Room. The names of each person who will attend must be provided to the Commission in advance. The Commission will not allow persons in excess of the maximum number into the Hearing Rooms. Parties should consider whether some of the participants in an arbitration, in particular witnesses, could participate in in-person hearings by remote means.
The Commission requires that parties with a matter listed for arbitration by VCR confer as to arrangements which will facilitate a successful arbitration by VCR. Parties should confine the issues in dispute as much as possible, confer with respect to whether an agreed statement of facts can be filed and clearly define the remaining issues for determination by the Commission. The parties may consider approaching the Commission for a further conciliation to assist the parties in taking these steps.
Parties must confer with respect to the number of witnesses required for cross-examination; the location(s) from which witnesses and parties will participate; and, steps to ensure that the Commission and witnesses have conveniently available to them all documents to which they will be referred. In most circumstances a Court Book would be required. The Commission may make directions in relation to these matters.
The Commission may list matters for mention prior to the date the matter is listed for arbitration by VCR to ensure the parties' technology is suitable for a successful video conference hearing. The Commission's User Guide for VCR during the COVID-19 pandemic is attached. Parties must ensure they and their witnesses are familiar with this Guide and the use of this technology.
Conciliations and Compulsory conferences
The Commission will continue to list conciliation and compulsory conferences by teleconference.
The Commission uses various teleconferencing facilities. Parties should check each listing notice carefully to ensure they are aware of the dial-in details, or other arrangements, for each matter as these details may change from time to time.
When matters are listed for conciliation or compulsory conference parties must provide or confirm their contact phone numbers to irc_Commissioner_support@justice.nsw.gov.au 2 full business days before the listing to ensure the Commission can make the necessary arrangements. Where matters are listed urgently then phone numbers must be provided as soon as possible. Due to the constraints of some of the teleconference facilities used by the Commission, failure to provide contact details in accordance with this requirement could result in a listing being vacated at short notice.
If parties intend to refer to documents in a compulsory conference, report back or conciliation then these documents must be sent to the other party and the Commission at irc_Commissioner_support@justice.nsw.gov.au no later than 3:00pm on the day before the matter is listed. Parties should be conscious that the Commission has limited resourcing to print and collate these documents, and send only those sections of the documents that are necessary. These documents will not be taken to have been filed in the Commission but will be made available to the Commissioner to assist with conciliation.
After hours' assistance
Parties needing to notify a serious industrial dispute that involves industrial action or otherwise requires urgent intervention of the Commission, should continue to contact 0401 142 429.
N. J. ConstantChief Commissioner