The Industrial Relations Commission of New South Wales (Commission) can adopt simplified and cost-effective procedures for the resolution of small monetary claims. These procedures are known as the Commission’s “small claims procedures”.
The small claims procedures are primarily used in claims for recovery of remuneration under the Industrial Relations Act 1996 (NSW) (IR Act) heard before the Industrial Court of NSW (Industrial Court).
Small claims procedures are also available in other proceedings before the Commission in which a registered industrial organisation makes an application to recover remuneration under the IR Act. This includes, for example, an unfair dismissal claim where an application is made for the recovery of remuneration during the proceedings.
The Commission will not deal with such an application unless the party against whom the order is sought has been given adequate notice and an opportunity to be heard.
The key features of the small claims procedures include:
These procedures are intended to facilitate the timely and cost-effective resolution of disputes. Whether a matter proceeds under the small claims procedures is ultimately a matter for the discretion of the Commission.
The Fair Work Act 2009 (Cth) (FW Act) contains its own small claims procedures. However, those procedures cannot be used in underpayment proceedings before the Commission, and the Commission’s small claims procedures cannot be used in claims brought under the FW Act.
A worker can file a small claims application under the IR Act if:
An applicant must complete the application for recovery of money or civil penalties, indicate in the appropriate section that they elect to have the application dealt with as a small claim, and file the application with the Registry by email, post, or in person.
The Commission will consider whether the matters in dispute are complex, difficult, or of particular importance when deciding whether a matter is suitable to be heard as a small claim.29 An initial determination not to deal with a matter as a small claim can be reconsidered at the request of a party if circumstances change.30
If an application for recovery of remuneration is made by a registered industrial organisation during other proceedings before the Commission, the decision-maker will consider whether the party against whom the order is sought has been given adequate prior notice of the application and has been given an opportunity to be heard.
The Commission will first attempt to resolve a small claims application through conciliation, after giving the parties reasonable notice.
The matter will proceed to a hearing if the legal issues are unresolved and the Commission is satisfied the parties have made reasonable attempts to settle the matters in dispute.31
A Member of the IRC can make directions as to the conduct of the proceedings, including as to the appropriate procedure for any hearing. Small claims proceedings will generally be heard and determined on the basis of written statements prepared by the parties,32 but written and/or oral submissions will sometimes be necessary.
26 Fair Work Act 2009 (Cth) s 548.; 27 Or a different amount prescribed by the Industrial Relations (General) Regulation 2020 (NSW).; 28 Annual Holidays Act 1944 (NSW) s 13; Long Service Leave Act 1955 (NSW) s 12; Long Service Leave (Metalliferous Mining Industry) Act 1963 (NSW) s 12.; 29 Industrial Relations Commission Rules 2022 (NSW) r 8.2(1).; 30 Ibid r 8.2(2).; 31 Ibid r 8.3(3).; 32 Ibid r 8.4(2).
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