Precedent (Australian Lawyers Alliance)
A NEW TRIBUNAL FOR RESOLVING WORKPLACE INJURY DISPUTES IN SA
By Tony Kerin
On 1 July 2014, in addition to the Return to Work Act coming into effect, a new act governing the procedures to resolve workplace injury disputes also came into being. Practitioners will need to familiarise themselves with the new legislation. The South Australian Employment Tribunal Act (2014) (SAET) provides for a process to review decisions made regarding injuries arising out of the course of employment. It confers powers on the Tribunal itself and also governs all the other normal processes, such as the appointment of members and the like.
The Act overhauled the review process, essentially condensing it (or tries to) compared with the old system, and simplifying some of the stages.
Whether the desired effects of increased speed of file management occurs (a commendable aim) remains to be seen, given the idiosyncratic nature of just about every WorkCover injury and dispute.
It is unfortunate for legislators that one size does not fit all.
The Tribunal is established under Part 2; jurisdiction is conferred under Part 3; and its powers and principles and proceedings under Part 4. Part 5 deals with reviews and appeals; Part 6 with staffing; and Part 7 deals with miscellaneous matters.
The conciliation process is to be more inquisitorial, and is expected to take place over a shortened period of time (six weeks).
The issues in dispute are also expected to be well and truly on the table in a written form with an assessment of merits. The conciliator will provide a written assessment of the merits of the case at the conclusion of the conference, as a new part of the dispute process.
A new requirement is that by the time a claim reaches a presidential member of the Tribunal, the matter in dispute will be comprehensively outlined. The following features can be expected under the SAET regime:
1. Issues should be clearly defined at an early stage;
2. More work will be required at an earlier stage to provide a detailed understanding of issues before the matter is brought before a presidential member;
3. There is an expectation that parties will undertake necessary steps and not wait to be ordered to do matters. There is a definite emphasis in the Act that resolving disputes will be expected to occur more expediently. Proceedings under the old Act continue, but at some point in the future the Tribunal will be dissolved by government proclamation pursuant to the Act (after currently ongoing matters are concluded);
4. An area of contention will undoubtedly be the 30 per cent whole person impairment assessment and the definition of a seriously injured worker. Alternative dispute resolution is a step in the process and conciliation at a judicial level is expected to occur regularly. However, a trial will always be the final method of deciding issues if the matter cannot be resolved;
5. Only appeals on questions of law will go to the full bench of SAET and thereafter can be made to the full Supreme Court on quantum of liability, but only with leave or permission of a Supreme Court justice;
6. Some experience has been lost from the conciliation officers’ division of the Tribunal, with people moving on and new conciliators appointed. Section 35 gives the Tribunal the power to refer questions arising in any proceedings for investigation of its own volition, but it must seek submissions from the parties before doing so. Once a report is obtained, the Tribunal is at liberty to make what use of the report it wishes. There is also a power regarding the issue of costs of such reports.
7. Section 36 provides for how the Tribunal will deal with practical considerations affecting how the Tribunal will run, and allows full discretion to the Tribunal to determine matters as it sees fit. Compulsory conciliation conferences are a new feature. While they were not necessarily compulsory under the previous regime, they are now under s43. Mediation is a further option, and again there will be pre-hearing conferences to ensure that matters are on track or if there is a possibility of settlement occurring.
8. A party to the proceedings can have representation as existed under the old Act. Representation costs are considered in Division 7 and, while they are still available, the ability to get them may arguably be somewhat refined and opposition to them may now be more regular. The starting point (s52(1)) is that the parties bear their own costs in any proceedings before the Tribunal.
However, in s52(2) the Tribunal can make an order for the payment of a party’s costs or that of another person if the Tribunal thinks it appropriate to do so, taking into account the objectives of trying to simplify proceedings as much as possible and ensure that proceedings are fair and reasonable. The Tribunal will look at the reasonableness of bringing the proceedings in the first place and also at the issue of merit.
9. Arguably, under the old regime, claims essentially had to have no merit or be frivolous and vexatious for costs not to be awarded. However, no case law exists on this issue as yet. Section 57 gives a new power of security as to costs, although it could arguably have occurred under the old system, given the discretion of the Tribunal.
10. Importantly, time limits can be extended or abridged, as always, by the Tribunal. The basis of the exercise of that power is not referred to in s61 of the Act, just that the power exists in relation to limits imposed under the SAET Act.
11. A right of appeal exists, and appeals can be heard by a single member or two or three members (s66).
12. There are new rules and regulations made under to s92 and s93, the full effect of which will only become apparent over time.
On the face of it, the Act will require more efficient processes from a worker’s representative’s point of view, and matters should conclude within much shorter timeframes. Given the invariably individual nature of injuries and disputes, however, only time will tell whether these laudable objectives are fulfilled as intended.
Tony Kerin is Principal of Maurice Blackburn Lawyers, Adelaide. PHONE (08) 7109 2700 EMAIL firstname.lastname@example.org.