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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Industrial Relations Amendment
(Industrial Agents) Bill 2002
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Industrial Relations Act 1996 No 17 2
Schedule 1 Amendments 3
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY, has
finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of NEW
SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2002
New South Wales
Industrial Relations Amendment
(Industrial Agents) Bill 2002
Act No , 2002
An Act to amend the Industrial Relations Act 1996 with respect to certain fee
agreements and industrial agents; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill as
finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Industrial Relations Amendment (Industrial Agents) Bill 2002
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Industrial Relations Amendment (Industrial Agents)
Act 2002.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Amendment of Industrial Relations Act 1996 No 17
The Industrial Relations Act 1996 is amended as set out in Schedule 1.
Page 2
Industrial Relations Amendment (Industrial Agents) Bill 2002
Amendments Schedule 1
Schedule 1 Amendments
(Section 3)
[1] Sections 90A and 90B
Insert after section 90:
90A Industrial agent must not represent an applicant or employer in
proceedings unless there are reasonable prospects of success
(1) In this section:
compensation order means an order for compensation under
section 89 (5).
compensation proceedings means proceedings under this Part
in which a compensation order is sought (whether or not any
other order is sought in addition to or as an alternative to the
compensation order).
(2) An industrial agent must not represent an applicant in
compensation proceedings unless the industrial agent has filed
a certificate with the Industrial Registrar certifying that the
industrial agent has reasonable grounds for believing, on the
basis of provable facts, that the applicant's claim in the
proceedings has reasonable prospects of success.
(3) An industrial agent must not represent an employer in
compensation proceedings unless the industrial agent has filed
a certificate with the Industrial Registrar certifying that the
industrial agent has reasonable grounds for believing, on the
basis of provable facts, that the employer's response to the
claim in the proceedings has reasonable prospects of success.
(4) A fact is provable only if the industrial agent reasonably
believes that the material then available to him or her provides
a proper basis for alleging that fact.
(5) A claim has reasonable prospects of success if there are
reasonable prospects of the Commission making the
compensation order or, if the compensation order is sought in
addition to or as an alternative to another order, any of the other
orders sought.
Page 3
Industrial Relations Amendment (Industrial Agents) Bill 2002
Schedule 1 Amendments
(6) A response has reasonable prospects of success if there are
reasonable prospects of the Commission refusing to make the
compensation order or, if the compensation order is sought in
addition to or as an alternative to another order, any of the other
orders sought.
(7) This section does not apply to any service provided as a
preliminary matter for the purpose of a proper and reasonable
consideration of whether a claim or response has reasonable
prospects of success.
(8) If the Commission hearing proceedings under this Part finds
that the facts established by the evidence before the
Commission do not form a basis for a reasonable belief that the
claim or the response had reasonable prospects of success,
there is a presumption for the purposes of this section that
industrial agent services provided on the claim or the response
(as appropriate) were provided without reasonable prospects of
success.
(9) A presumption arising under this section is rebuttable and an
industrial agent who seeks to rebut it bears the onus of
establishing that at the time industrial agent services were
provided there were provable facts (as provided by
subsection (2) and (3)) that provided a basis for a reasonable
belief that the claim or the response on which they were
provided had reasonable prospects of success.
(10) An industrial agent may, for the purpose of establishing that at
the time industrial agent services were provided there were
provable facts (as provided by subsection (2) and (3)) that
provided a basis for a reasonable belief that the claim or the
response on which they were provided had reasonable
prospects of success, produce information or a document
despite any duty of confidentiality in respect of a
communication between the industrial agent and a client, but
only if:
(a) the client is the client to whom the industrial agent
services were provided or consents to its disclosure, or
(b) the Commission is satisfied that it is necessary for the
industrial agent to do so in order to rebut a presumption
arising under this section.
Page 4
Industrial Relations Amendment (Industrial Agents) Bill 2002
Amendments Schedule 1
90B Extinguishment of rights and liabilities
A payment made after the commencement of this section in
compliance with an order under this Part or any other
agreement between the applicant and employer in relation to
proceedings under this Part does not extinguish any right given,
or liability imposed, on an applicant or employer by the order
or agreement unless the payment is made:
(a) directly to the applicant or employer, or
(b) to an industrial organisation on behalf of the applicant
or employer, or
(c) to a practising legal practitioner on behalf of the
applicant or employer, or
(d) to another person in accordance with the directions of
the Commission.
[2] Section 166 Representation of parties
Insert "or an agent who is an industrial agent" after "practising legal
practitioner" in section 166 (2).
[3] Section 181 Costs
Insert after section 181 (2) (c):
(c1) the Commission may award costs against an industrial
agent representing an applicant or employer in
proceedings under Part 6 of Chapter 2 if:
(i) the industrial agent fails to file a certificate as
required by section 90A, or
(ii) the Commission finds that the industrial agent
has filed a certificate under that section
certifying that the agent has reasonable grounds
for believing, on the basis of provable facts, that
the applicant's claim or employer's response to
the claim had reasonable prospects of success
when the agent did not have reasonable grounds
for believing, on the basis of provable facts, that
it had reasonable prospects of success, or
Page 5
Industrial Relations Amendment (Industrial Agents) Bill 2002
Schedule 1 Amendments
[4] Section 181A
Insert after section 181:
181A Obligation to disclose costs to clients and Commission
(1) An industrial agent who represents a client in proceedings
before the Commission must disclose to the client and the
Commission in accordance with this section the basis of the
costs of any industrial agent services provided by him or her in
the proceedings.
(2) The following matters are to be disclosed to the client and the
Commission:
(a) the amount of the costs, if known,
(b) if the amount of the costs is not known, the basis of
calculating the costs,
(c) the billing arrangements,
(d) any other matter required to be disclosed by the
regulations.
(3) A disclosure under the section is to be made at or before the
commencement of the proceedings in which the industrial
agent is representing the client.
(4) A disclosure under this section must be made in writing and be
expressed in clear plain language.
(5) The disclosure may be made separately or in a costs agreement
or in any other contract relating to the representation of the
client in the proceedings.
(6) A disclosure is not required to be made under this section when
it would not be reasonable to require it.
(7) The regulations may make provision for or with respect to:
(a) the information to be disclosed under this section, and
(b) when it would not be reasonable to require a disclosure
to be made under this section.
(8) If an industrial agent fails to make a disclosure to a client in
accordance with this section of the matters required to be
disclosed by this section in relation to costs, the client need not
pay the costs of the representation.
Page 6
Industrial Relations Amendment (Industrial Agents) Bill 2002
Amendments Schedule 1
(9) An industrial agent who fails to make a disclosure in
accordance with this section of the matters required to be
disclosed by this section in relation to costs may not maintain
proceedings for the recovery of the costs.
(10) In this section:
costs agreement means an agreement between a party to
proceedings before the Commission (the client) and an
industrial agent as to the costs of representing the party in the
proceedings.
[5] Section 406A
Insert after section 406:
406A Costs agreements
(1) In this section:
costs agreement means an agreement between a party to
proceedings under this Act (the client) and an industrial agent
or other person (not being a legal practitioner) as to the costs of
representing the party in the proceedings.
(2) A costs agreement may not provide that costs are to be
determined as a proportion of, or are to vary according to, the
amount recovered in any proceedings to which the agreement
relates.
(3) If an industrial agent or other person (not being a legal
practitioner) enters a costs agreement that contains a provision
referred to in subsection (2) with a client:
(a) the client need not pay the costs of the representation,
and
(b) the industrial agent or person may not maintain
proceedings for the recovery of the costs.
[6] Schedule 4 Savings, transitional and other provisions
Insert at the end of clause 2 (1):
Industrial Relations Amendment (Industrial Agents) Act 2002
Page 7
Industrial Relations Amendment (Industrial Agents) Bill 2002
Schedule 1 Amendments
[7] Schedule 4
Insert after clause 17A:
17B Industrial agents
Section 90A (as inserted by the Industrial Relations
Amendment (Industrial Agents) Act 2002) does not apply to or
in respect of proceedings that were commenced before the
commencement of that section.
[8] Schedule 4
Insert before clause 22:
21A Representation of parties
Section 166 (2) (as amended by the Industrial Relations
Amendment (Industrial Agents) Act 2002) does not apply to or
in respect of conciliation proceedings that were commenced
before the commencement of the amendment.
[9] Schedule 4
Insert after clause 31:
31A Costs agreements
Sections 181A and 406A (as inserted by the Industrial
Relations Amendment (Industrial Agents) Act 2002) do not
apply to or in respect of proceedings that were commenced
before the commencement of those sections.
Page 8
Industrial Relations Amendment (Industrial Agents) Bill 2002
Amendments Schedule 1
[10] Dictionary
Insert in alphabetical order:
industrial agent means a person (other than a legal practitioner
or an employee or officer of an industrial organisation) who
represents a party in proceedings before the Commission for
fee or other reward.
industrial agent service means any service performed by a
person in the person's capacity as an industrial agent.
Page 9
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