Processing and referral
When an agency receives a claim it should check whether the person is eligible to lodge the claim, has included all the required information and has lodged the claim in the required timeframe.
This section provides information about:
- key actions and options for agencies when a claim is lodged
- the impact of claims on human resource transactions
- attempting a resolution
- referring the claim to the Commission, including information to include when forwarding
- the Commission’s assessment of the claim and appointment of a Commission employee (Conciliation and Review Officer) by the Commissioner.
Receiving a claim
Once an agency receives a claim it should check to see whether:
- the person is eligible to lodge a claim
if there are any doubts about eligibility, the claim should be referred to the Commission for assessment
- the required information has been included
the agency may seek further information from the claimant if necessary
- the claim has been lodged
within the required timeframe.
Actions delayed by a breach claim
Effect of claims on transfer decisions
Once a breach of Standard claim has been lodged against the Employment Standard in relation to a transfer, the transfer cannot proceed until the claim has been finalised.
Effect of claims on appointments
Under the Regulations, some notifiable employment decisions cannot proceed until any breach of Standard claims are finalised. The table on pages 16 and 17 of this guide provides further details of the processes covered by the Employment Standard where actions cannot proceed until the claim is finalised.
Effect of claims on appointments from an appointment pool
The agency may only appoint people from the pool, provided sufficient vacancies are available to allow people who have made a claim to have access to relief if their claim is upheld.
For appointment pools, retaining some appropriate vacancies will allow relief for a claimant if it is required but will still allow the agency to use the pool for operational effectiveness.
However, given the Commissioner can direct that a person not be appointed it is suggested agencies consult with the Commission employee managing the relevant claim before proceeding to select from the appointment pool.
Actions that can proceed despite the lodgement of a claim
Approval for appointment or transfer to proceed during a claim
The Commissioner may give written approval to the agency to appoint or transfer despite the claim having been made. This approval is at the Commissioner’s discretion.
If the agency is seeking to proceed with an appointment or transfer, a written submission must be made to the Commissioner that sets out the reasons why the employing authority should make the proposed appointment or give effect to the proposed transfer.
Options for addressing a breach claim
When a breach of Standard claim is lodged, an agency:
- should endeavour to resolve the claim with the claimant by providing an explanation of why and how the decision was made or proposing action to resolve the matter
- must forward the claim to the Commission if it is not resolved (withdrawn in writing by the claimant) within 15 working days.
Annual reporting data to be maintained
If the claimant considers the claim is resolved, they can withdraw their claim in writing to the agency where lodged. Claims withdrawn within 15 working days after lodgement do not need to referred to the Commission. However, records of all claims, including those withdrawn, need to be made to assist the agency’s annual reporting requirements to the Commission.
If the claim is not withdrawn in writing within 15 working days after lodgement, the claim must be forwarded to the Commission.
Referring a claim to the Commission and informing the claimant
If the agency does not resolve the claim it must be forwarded to the Commission no later than 15 working days after the claim was lodged.
Once the claim is forwarded to the Commission the agency must write to the claimant informing them the claim has been sent.
Checklist of information to be forwarded to the Commission with the claim
Agencies may use the ‘Referral of breach of Standard claim form’ in the template section of this guide to assist them to refer claims to the Commission. When referring a claim to the Commission, the agency should provide:
Initial action by the Commission
Assessment of the claim
When the claim is referred to the Commission it will be assessed to ensure it is within jurisdiction and the reviewable decision is covered by one of the Standards.
The claim will also be assessed to establish its basis and whether it is a claim the Commissioner will accept. In certain circumstances the Commissioner can decline to deal with a claim, including where the claim:
- does not relate to a matter the Commissioner has the power to deal with
- is considered vexatious, frivolous or to lack substance
- is solely about the competitive merit of the claimant, or
- the subject matter of the claim is being dealt with, or has already been dealt with adequately by the Commissioner or another entity.
If the Commissioner decides not to deal with the claim, or to stop dealing with the claim, the Commissioner will inform the person in writing of the decision and the reason for the decision.
Options for dealing with the claim
The Regulations provide for claims to be dealt with through conciliation or review.
If the claimant and the agency agree to participate in conciliation, the Commission employee will attempt to conciliate the claim. Both parties must agree to participate for conciliation to occur.
Where either party does not wish to participate in conciliation, or conciliation has failed to resolve the claim, the claim will be reviewed.
Page last updated 30 December 2014