The recent District Court decisions of Amana Living v Soliven
("Soliven")  WADC 118 and Hawker Pacific Pty Ltd v
Lang ("Lang")  WADC 117 are testament to the
troubles occasioned by both the interpretation of the relevant
legislative provisions and the procedure associated with Section 61
When is a worker deemed to have applied for an order
of an Arbitrator?
Soliven appealed an Arbitrator's decision that the 21 day
period on receiving a Form 5 (within which the worker had to
"apply for an order of an Arbitrator" under
section 61(3) of the Act) is satisfied on making an application for
conciliation within that time. The Arbitrator also found that any
ongoing timing requirements to bring an arbitration application
would be dictated by the 28 days allowed under Rule 23 of the
Arbitration Rules 2011 (Rules).
The Arbitrator's decision was upheld and the employer's
appeal dismissed. This was despite the appeal being based on the
interpretation of Regulation 7(3) which provides a distinct
requirement that the conciliation period, commencing on
the application for conciliation and ending on the issuing of a
certificate at the end of the conciliation process, is not to be
included in calculating the 21 day period within which a worker may
apply for an order under section 61(3) of the Act.
Therefore, the operation of Regulation 7(3) was subordinate to
the broader provisions of the Act and Rules.
In Lang, this discrepancy between regulation 7(3), Rule 23 and
section 61 was highlighted as something which needed to be
Lang involved numerous issues, one of which related to the
Arbitrator's finding that Regulation 7(3) was void as
subsidiary legislation inconsistent with section 61 of the Act.
The learned Judge was not required to address that issue in any
detail. Given the grounds of appeal, however, he did suggest the
potential alternative position not taken in 'Soliven',
namely that the 28 days to file an arbitration application imposed
by Rule 23 of the Arbitration Rules could be the more likely
provision that is inconsistent with section 61 of the Act.
Therefore Soliven and Lang support the position that Regulation
7(3) is void in the context of the timing requirements in applying
for an order of an Arbitrator under section 61 of the Act, albeit
that Lang provides some scope to suggest there are discrepancies
which need to be addressed, including the application of Rule 23 of
the Arbitration Rules.
The current position is that the application for an order of an
Arbitrator is said to have taken place on making an application for
conciliation within 21 days of service of the Section 61
The two authorities also raise the important issue of when an
application is deemed to have been made in the context of filing
papers with WorkCover.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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