Address for service: the address given by a party where documents can be sent. The address must be a place to which documents in the proceedings may be left for the person during ordinary business hours and may be posted for the person. It may be the office of the solicitor or an agent acting for the party.
Adjournment: when a case is deferred to another day or later time.
Affidavit: a written statement of facts that is sworn or affirmed (a solemn promise) to be true. An affidavit must be signed before a lawyer, a Justice of the Peace or some other authorised person and then served to be used as evidence in the proceedings. The form can be accessed online.
Acting Justice: decision-maker who is a Justice and Presidential Member of the Commission that is not permanent member of the Commission but is available to hear cases including appeals that are allocated to them.
Aggrieved person: a person who has been negatively affected by a decision made by, or the conduct of, another person, corporation or organisation.
Allegation: a statement that another person, corporation or organisation has said or done something, usually something that is inappropriate or unlawful.
Appeal: a procedure which allows a party to seek to overturn a decision or judgment by asking for it to be reviewed.
Appellant: the person who appeals against a decision.
Applicant: the person who files an application to start legal proceedings against another person seeking relief or redress in relation to that legal issue.
Application: usually refers to a document that starts legal proceedings. It may also refer to an oral or written request, usually in the form of a Notice of Motion, for a decision-maker to make certain orders or directions. Application forms can be found on the website.
Arbitration: the formal process by which a decision-maker hears from witnesses and considers the evidence before making a final decision.
Associate: an employee who assists Presidential Members members of the Commission and who may also communicate with parties on their behalf.
Award: a legal document, made by the Commission, that contains the terms and conditions of employment for a specific industry or occupation or subset of employees. It is a type of industrial instrument.
Case: when an application or other originating process is initiated, it becomes a case before the Commission and will be given a case number. See Matter.
Chronology: the arrangement of events or dates in order of their occurrence compiled into a written document (it can also be referred to as a ‘timeline’). A template is available online.
Commission in Court Session: the Industrial Court of New South Wales is referred to as the Commission in Court Session in the Industrial Relations Act 1996 (NSW). Certain functions can only be performed by the Commission in Court Session.
Commission Member: an independent statutory office holder appointed to their position by the Governor. They have certain powers to determine applications, conduct hearings and conciliation. See Decision-maker.
Commissioner Support Officer: an employee of the Commission that assists the Commissioner Member and may also communicate with parties on their behalf.
Compensation: a financial remedy for loss paid to the person who suffered the loss by the person, corporation or organisation that caused that loss.
Compulsory Conference: a meeting of persons who might help in the resolution of an industrial dispute where attendance is compulsory. Typically, when an industrial dispute is notified to the Commission, the matter will be listed for a compulsory conference and require the attendance of the parties and possibly other interested parties. Conciliation of the dispute will usually occur during a compulsory conference. See Conciliation.
Conciliation: a compulsory and informal process which seeks to assist the parties to resolve the proceedings by agreement, avoiding the need for an arbitration or other hearing. It is similar to mediation. The parties discuss their legal issues and explore ways in which they may resolve the dispute, led by a Commission Member. It usually includes confidential private discussions that are not recorded. If the parties cannot resolve the matter through conciliation the matter will proceed to arbitration.
Contravention: an action which offends against a law or order (also referred to as a breach).
Costs: legal fees and expenses of a party in a matter before the Commission.
Court book: a collection of documents (sometimes called a ‘bundle’) with an index, containing the documents which the parties will rely upon in a hearing. Information about the preparation and content of court books can be found in Practice Note 32.
Court officer: helps the decision-maker in the hearing room, calls witnesses and administers oaths and affirmations.
Cross claim: a claim seeking relief made by a respondent against the party suing them or against another respondent or a third party, arising or related to the subject matter of the proceedings that are already on foot.
Decision: a final determination made by the Commission Members. See Judgment for decisions made by the Commission in Court Session.
Decision-maker: Presidential Members, Commission Members and Registrars who preside over matters and are granted powers to adjudicate, conciliate or issue orders.
Default judgment: an order determining a matter in favour of an applicant made in cases where no response is filed or the respondent does not appear at the hearing.
Directions: orders made by a Commission Member in relation to the procedural conduct of the proceedings. For example, directions may be made for the filing of evidence and submissions by certain dates to prepare the matter for a hearing. See Usual Directions.
Discovery: a process by which the parties involved in a legal proceeding inform each other of documents they have in their possession that relate to the matters in dispute and provide access to those documents, usually as a result of an order to do so. It is a process rarely used in Commission proceedings.
Enterprise agreements: an agreement between an employer and employees (or their union) containing terms and conditions of employment and which has been approved by the Commission. It is a type of industrial instrument.
Evidence: material, including oral testimony, written statements or affidavits and relevant documents, presented in a case that supports or proves that an allegation is true.
Ex parte hearing: a hearing where one party is not present and may not have been given notice of the application before it is heard; generally, this will only occur where the matter is urgent, and arrangements cannot be made to allow the other party to attend.
Ex tempore decision: a decision given by a decision-maker orally (that is spoken) during or at the conclusion of a hearing. In some cases the decision may be subsequently published in a written form.
Exhibit: a document or item received by the Commission as evidence.
Fair Work Commission: Australia’s national workplace relations tribunal and registered organisations regulator for the private and federal public service sectors.
Filing of documents: the procedure by which a document is formally provided to the Commission (through the Registry) and placed on Commission’s file.
Final order: an order made by the Commission to bring a case to a close.
Form: a document that must be completed and filed with the Commission. Different forms are used for different legal matters and processes.
Full bench: at least three members of the Commission will hear an appeal from a decision made by another member (who will not be on the Full Bench).
Hearing: a formal public process which is recorded where parties can present evidence and submissions to a Commission Member which is then used to make a decision.
Hearing room: the room where a Commission Member hears from all parties involved in a particular case.
Industrial Court of NSW: the name of the Commission when sitting in Court Session under the Industrial Relations Act 1996 (NSW). Certain functions can only be performed by Presidential Members.
Industrial instruments: legally enforceable documents containing terms and conditions of employment that apply to state-based public sector employees and local government employees in NSW.
Industrial Registrar: a person empowered to exercise functions under the Industrial Relations Act 1996 (NSW) and other acts. The Industrial Registrar’s duties include the regulation of registered organisations of employees and employers.
Interlocutory order: a temporary order made by the Commission until another or final order is made.
Interlocutory hearing: a hearing to determine a preliminary issue in the proceedings.
Judgment: the determination of a court. A final determination made by the Commission otherwise than in court session is referred to as a Decision.
Judicial officer: a person who has been appointed to hear and decide legal matters. Commissioners are judicial officers under the Judicial Officers Act 1986 (NSW) but are not judicial members of the Commission.
Judicial member: those decision-makers who were appointed as Justices as well as Presidential members of the Commission. They include Acting Justices, who are not permanent members of the Commission but can hear cases allocated to them.
Judicial review: a type of hearing akin to an appeal where a court hears an application to quash a decision because the original decision was beyond power or not made in accordance with fundamental procedural fairness obligations. It does not involve a re-examination of the merits of the decision.
Jurisdiction: the scope of a court or tribunal’s power to examine and determine facts, interpret and apply the law and make orders. The Commission has powers granted by the Industrial Relations Act 1996 (NSW) and parts of the Work Health and Safety Act 2011 (NSW), among others.
Leave: permission from the Commission to do something (for example to file a document out of time). A person seeking leave may need to fill in a form.
Matter: a proceeding before the Commission. See Case.
Notice of appeal: a document filed with the Registry to start an appeal.
Notice of discontinuance: a document filed to end proceedings before the Commission.
Notice of listing: a document sent by the Commission to the parties with the time, date and location for a meeting or hearing. It can also contain instructions or other requirements.
NSW Online Registry: A website where parties can file documents and obtain information related to a case before the Commission.
Order: a command or direction issued by the Commission that must be followed.
Originating process: a document that is filed to commence legal proceedings. See application.
Out of time: an application, response or document that is filed outside of the stipulated time limits. In some cases leave may need to be obtained from the Commission before the documents can be filed or the application proceed.
Outline of submissions: a written document setting out a party’s argument, supported by reference to relevant cases and the evidence that will or has been tendered in the proceedings. Practice Note 32 sets out information on the length and format of submissions.
Party or parties: a person or legal entity, such as a corporation, or industrial organisation, involved in a court case, for example, the applicant or respondent.
Practice Notes: issued by the President of the Commission to provide information and set requirements regarding specific aspects of the Commission’s practice and procedures. Parties are required to comply with Practice Notes.
Precedent: a previous decision made by a decision maker that can be applied to another case with similar facts or circumstances. Previous decisions made by decision-makers at a higher level in the court hierarchy can be ‘binding’, meaning they must be followed.
Prejudice: an action or circumstance, that has or would have a real or harmful effect on, or creates a disadvantage for, a party in a proceeding.
Proceeding: an action or claim commenced in the Commission, including an appeal.
Reasonable steps: a genuine attempt to complete a task.
Registrar: See Industrial Registrar and Deputy Registrar.
Registry: a public area at the Commission where people can obtain information about the Commission’s processes and their case and file documents for their case.
Representative: a person who acts on behalf of a party in a case with that party’s permission. A person can engage a lawyer (a solicitor or barrister) to appear for them as their representative at a hearing.
Response: a document filed in reply to an application or statement of claim or other document making a claim for relief that sets out the respondent’s view of the application. For example, a document filed by the employer in an unfair dismissal or public sector disciplinary appeal.
Respondent: a party to proceedings against whom relief is claimed by an applicant or appellant.
Rules: in addition to the provisions of the Industrial Relations Act 1996 there are Rules that set out procedural requirements and powers of the Commission including what forms must be used.
Self-representation: where a party to proceedings does not have another person representing them and so represents themselves (also known as ‘a self-represented litigant’).
Service: the process of providing a copy of your court documents to each other party after the document is filed with the Commission. For example, the applicant must serve their application on the respondent after filing a copy with the Commission.
Settlement: an agreement between the parties in a case that resolves or fixes their dispute avoiding the need for the Commission to make a decision. The parties may decide to put the agreement in writing.
Submissions: See Outline of Submissions.
Summons: a document issued by the Commission, of its own motion, or at the request of a party, that requires the recipient to perform a certain action. Typically, it will require the recipient to produce documents and/or attend to give evidence, but it may also require a party to attend the Commission for a compulsory conference.
Sworn evidence: an account given by a person to the Commission about what they know, saw, heard or experienced which they have promised is true by ‘swearing an oath’ on a religious text or by making an affirmation (a solemn promise to tell the truth). Sometimes also known referred to as ‘evidence on oath’. Serious penalties may be imposed on someone who knowingly lies while giving sworn evidence.
Transcript: a written record of the words spoken during a hearing. The Commission does not order transcripts in all instances and does not provide transcripts to parties. A party can order a transcript on the Commission’s website, but they will be responsible for the cost of its preparation.
Undertaking: a legal commitment or promise to act or to refrain from acting in a particular manner or to do a certain thing. An undertaking can be given by one party to another, which may amount to a legally binding commitment. An undertaking given to the Commission is a promise which if broken has the same effect as failing to comply with an order.
Witness Statement: a written account of facts related to a case provided by someone who has directly observed or experienced the events in questions, or who has knowledge of the matters the subject of the proceedings, and which may be presented to the Commission as evidence. Unlike an affidavit, a witness statement while usually signed is not sworn or affirmed. At a hearing a witness giving sworn evidence may be asked if the contents of their witness statement are true and correct, and if they answer yes, the statement may be admitted as the witnesses’ sworn evidence. Witness statements can be completed online.
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