Termination of Employment Matters

Applications for relief in respect of termination of employment continued to form a significant part of the Commission’s work. In all States Deputy Industrial Registrars, senior Registry Officers and retired Members of industrial tribunals continued to provide assistance by undertaking conciliation conferences. In Victoria, for example, there were 4,200 conferences of that kind. Without this assistance applicants would have had to wait many months for their cases to be brought on and in some States the caseload would have been intolerable. In South Australia additional assistance was provided by dual appointees who dealt with all cases outside the metropolitan area and all of the conciliation proceedings and some preliminary arbitrations in the metropolitan area. Despite the introduction of new procedures for listing arbitrations in Victoria in 1998-99 delays in bringing applications to hearing have led to the introduction of further changes to the process. The President issued a comprehensive Practice Note toward the end of the reporting period. The changes operate from 1 July 2000 and are in the nature of fine-tuning. The principal changes are that litigants receive a fixed date for arbitration, should it become necessary, at a much earlier point in the process and all adjournment applications require a formal application and compelling grounds. The management of termination of employment matters, particularly in Melbourne, is an area in which improvements are constantly being sought. The additional caseload pressures generated by the reduction in the number of Members make the timely resolution of these applications ever more difficult to achieve. As has proved to be the case in recent years, most of the applications for relief in respect of termination of employment were lodged in Victoria. In a number of the other States statutory provisions have the potential to afford a more substantial financial remedy to the applicant than do the provisions of the Workplace Relations Act 1996.

Chart 5 - Applications for Relief in respect of termination of employment - by region - 99-00

In the course of 1999-2000 a pro bono scheme was developed in conjunction with the Bar Council of New South Wales to assist the Commission in jurisdictional hearings where parties are unrepresented. Under the scheme, which will commence in the next reporting period in Sydney, barristers and readers will be rostered to appear before the Commission when jurisdictional matters relating to termination of employment are heard. The main purpose is to ensure all of the facts relevant to the unrepresented party’s case are placed before the Member of the Commission conducting the hearing. It is expected that counsel who participate in the scheme will have a wide range of experience - from readers to the most experienced barristers specialising in industrial law.

Table 4: Appeals - termination of Employment decisions - 99-00

There were 84 appeal decisions in relation to termination of employment applications. Overall, about 40 per cent were upheld although a much lower percentage of appeals on the merits were successful, only three out of 26.

The table on the next page summarises the method by which termination of employment applications were finalised during the reporting period on a State and Territory basis. There were over 7,000 applications finalised. Only 3 per cent of the applications were finalised by a substantive arbitration on the merits. A very large proportion of applications were finalised at, or prior to, a conciliation conference. Not all of those applications were settled. Many were not pursued, were dismissed on jurisdictional grounds or were filed too late.

Table 5 - Summary of outcomes of termination of employment matters during 99-00

Chart 6 shows the percentage of valid claims settled by conciliation on an annual basis since the first full year in which the jurisdiction commenced. This settlement rate is based on the settlements achieved through the conciliation process. In the last six years the settlement rates have ranged from just over 50 per cent to over 70 per cent. The trend is an upward one, giving some cause for concluding that conciliation is increasingly effective.

The next two tables provide aggregate statistics concerning the disposition of all applications since the commencement of the Act. Table 6 focuses on the conciliation phase and Table 7 on the post-conciliation phase.

While there were about 1,200 applications in which the conciliation phase was outstanding at the end of the reporting period, there were over 1,600 such applications at the same time last year. Similarly, there were about 850 applications which had not reached arbitration, not quite as many as there were in June 1999.

The final table ( Table 8) shows the number of cases in which the application was determined by a decision of a Member of the Commission. There have been over 2,000 such matters since the end of 1996. The data do not include all Commission decisions, but only decisions which led to the finalisation of the application. There are many preliminary decisions in the applicant’s favour, either in relation to jurisdictional issues or other matters, which are not included. Those applications are subsequently determined either by agreement, discontinuance or Commission decision.