Practice note: Requests to appear remotely

 

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Commencement date

  1. This practice note commences on 29 June 2017.

Application

  1. This practice note applies when video or telephone conferencing has not already been arranged by the presiding Member’s chambers.
  2. The purpose of this practice note is to provide guidance for making requests for the use of video and telephone conferencing facilities during hearings and conferences for matters before the Fair Work Commission (the Commission).
  3. Applications can be made for persons to attend hearings by video link or telephone.
  4. This practice note applies to all applications lodged with the Commission.
  5. The processes and procedures set out in this practice note apply to proceedings in all States and Territories.
  6. The Commission is subject to common law principles of procedural fairness. The Commission and the parties appearing before it, including their representatives, all have responsibilities to each other and to facilitate the provision of a fair hearing to all participants.
  7. A Commission Member may vary the operation of this practice note by direction or order.

Definitions

  1. In this practice note:

    Act means the Fair Work Act 2009

    applicant means a person who has made an application

    adjournment means to suspend or reschedule a conference or hearing to a later date

    Commission means the Fair Work Commission and consists of the President, 2 Vice Presidents, Deputy Presidents, Commissioners and 6 Expert Panel Members

    conference means a proceeding in relation to a matter before the Commission that is generally held in private, unless otherwise directed by the Commission, and is less formal than a hearing

    decision means a decision, order, determination or other directional ruling made by a Member of the Commission

    hearing means a proceeding before the Commission to allow the parties to present their evidence and submissions in relation to a matter

    matter means an application or other proceeding before the Commission

    Member means a Member of the Commission, such as the President, a Vice President, a Deputy President or a Commissioner

    Notice of Listing means a notice issued by the Commission to parties which sets out the time and place that a conference or hearing will take place at the Commission

    party means an applicant or respondent involved in a matter before the Commission

    respondent means the other party to the original proceedings from which the appeal is brought Rules means the Fair Work Commission Rules 2013

  2. A word or term used in this practice note has the same meaning as defined in the Act or in the Acts Interpretation Act 1901.

Legislation

  1. The following extracts from the Act are relevant:

    589 Procedural and interim decisions

    1. The FWC may make decisions as to how, when and where a matter is to be dealt with.
    2. The FWC may make an interim decision in relation to a matter before it.
    3. The FWC may make a decision under this section:
      1. on its own initiative; or
      2. on application.
    4. This section does not limit the FWC’s power to make decisions.

Background

  1. Video and telephone conferencing services allow people interstate or in remote locations better access to the Commissions services.

Requesting to appear by telephone or video link

  1. If you are unable to appear at a conference or hearing in person, you may be able to appear by telephone or video link. You should contact the Commission as early as possible so that the Member presiding over your matter can consider your request and arrangements can be made to accommodate it, if it is granted. The Commission may grant requests if, for example, the Member considers that the matter is suitable for telephone or video conference.
  2. A request to appear by telephone or video link must be communicated to the Commission, either by letter, fax or email. A request, accompanied by reasons for the request, must be made in writing to the relevant Member’s chambers. You can find the relevant chambers email address on the Notice of Listing which was provided to you. You must ensure that the other parties to the matter are provided with a copy of the request.
  3. A party can make a request to appear by telephone or video link at a hearing at any stage of a matter. However, there is generally an appropriate or logical time to make the request (for example before a conference or hearing begins or during a substantial break in proceedings). A request may be declined if it is too late to make appropriate arrangements.

Considering a request to appear by telephone or video link

  1. When the Commission receives a request for a party to appear by telephone or video link at a conference or hearing, the Member responsible for the matter will decide whether or not to grant the request. In deciding whether to grant the request the Member will consider whether physical attendance is necessary and whether the reasons for the request are reasonable. Before making a decision the Member may seek the views of other parties to the matter.
  2. The requesting party (and other parties) will be notified of the Member’s decision. Depending on the context of the request in relation to the main matter, the decision may or may not be in writing and may or may not be accompanied by written reasons – see s. 601 of the Act.
  3. Approval of requests may be subject to the availability of facilities both at the Commission and in the location of the requesting party.

If the request is granted

  1. Where a conference or hearing is to be conducted by telephone or video link, it is essential that parties provide any documents to the Commission and to the other parties in advance of the conference or hearing
  2. If a request has been granted, the chambers of the Member responsible for the matter will notify the parties by issuing a new Notice of Listing, stating the matter is listed for conference or hearing ‘by telephone’ or ‘by video link’. It may also be possible the Commission will allow one or more parties to appear by telephone or video link while other parties appear at the Commission premises where the Member is sitting.
  3. If a matter is listed for hearing by telephone the parties will be asked to provide numbers on which they may be contacted. Where a matter is listed for hearing by video link the notice will detail the location/s at which the parties will need to attend.
  4. In relation to an application which has been lodged under s. 394 (unfair dismissal), the matter will generally only be allocated to the Member who will be hearing the matter14 days before the date of the conference/hearing. The Presiding Member will then decide whether a telephone or video link is suitable for the matter.
  5. Parties appearing by telephone or video link must make sure they are in a quiet place to receive a telephone call or video link and, if using a mobile device, they must ensure it is adequately charged and that they are located in an area where mobile reception is consistent.

Updated time

Last updated

01 August 2019

 

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