Standards of conduct during proceedings in the Workers Compensation Commission

Summary

The Commission has developed standards of conduct during proceedings, which it expects representatives and agents to comply with when dealing with matters before the Commission.

The standards of conduct have been developed with regard to the Commission's statutory objectives and to ensure that parties understand and participate fully in the dispute resolution process. The Commission's standards of conduct are aimed at assisting agents and representatives understand their responsibilities to their clients, other parties and the Commission.

Introduction

The Workers Compensation Commission has developed this guideline to outline its expectations in respect of the conduct of representatives or agents participating in resolving disputes before the Commission.

The guideline recognises that persons representing either a worker or employer have certain obligations and responsibilities that must be met.

It has been developed with due regard to the Commission's statutory objectives and the specific statutory provisions dealing with representation.

Section 367(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) outlines the objectives of the Commission as:

a.    To provide a fair and cost effective system for the resolution of the disputes under the Workers
Compensation Legislation.

b.    To reduce administrative costs across the workers compensation system.

c.    To provide a timely service ensuring that worker entitlements are paid promptly.

d.    To create a registry and dispute resolution service that meets both worker and employer
expectations in relation to accessibility, approachability and professionalism.

e.    To provide an independent dispute resolution service that is effective in settling matters and
leads to durable agreements between the parties in accordance with the Workers
Compensation Legislation.

f.     To establish effective communication and liaison with interested parties concerning the role of
the Commission.

Section 356 of the 1998 Act provides for representation before the Commission as follows:

1. A person who is a party to proceedings before the Commission is entitled to be represented by a legal practitioner or by an agent.
2. The Commission may refuse to permit a party to be represented by an agent if of the opinion that the agent does not have sufficient authority to make binding decisions on behalf of the party.
3. In proceedings in respect of a claim, the Commission may refuse to permit an insurer to be represented by a legal practitioner if the claimant is not represented by a legal practitioner.
4. A party to proceedings before the Commission is entitled to such representation or assistance (for example, the assistance of an interpreter) as may be necessary to enable the party to communicate adequately at any conference or hearing.
5. The Commission must take into account any written submission prepared by a legal practitioner acting for a party to proceedings and submitted by or on behalf of the party (whether or not the party is represented by a legal practitioner at any conference or hearing of the proceedings).
6. In this section, agent means:

a.  An officer of an industrial organisation of employers or employees registered under the
Industrial Relations Act 1996, or

b.    An officer of an association of employers or employees registered under the Workplace
Relations Act 1996 of the Commonwealth, or

c.    A person employed by a licensed insurer or former licensed insurer or by a self-insurer, or

d.    A person employed by a solicitor, solicitor corporation or incorporated legal practice.

General Principles

It is expected that representatives or agents appearing before the Commission will adhere to the following general principles. They should:

• In presenting their party's case, adhere to that party's instructions, prior to and during proceedings.
• Honestly represent the party to the proceedings. That is, not knowingly put forward any information that is untrue, or assist or encourage a party to do anything which is dishonest, or misrepresents known facts.
• Be knowledgeable about, and comply with, the relevant workers compensation legislation, the Commission's Rules, Practice Directions, and Guidelines, and the usual practices and procedures of the Commission.
• Behave courteously and respectfully to the opposing party, and his or her representative, to any witnesses called during the proceedings, to the Arbitrator, and to Commission staff.
• Not engage in behaviour that could reasonably be perceived to be inappropriate, unprofessional, or an abuse of process.
• Not engage in direct or indirect discriminatory conduct towards or in relation to any other person, including parties or representatives.

Conduct during Commission Proceedings

Representatives or agents acting or appearing in Commission matters are expected to:

• Assist the worker or employer to understand and participate in the dispute resolution processes of the Commission taking into account the party's personal circumstances and needs, especially in the case of persons with a disability.
• Conduct themselves and the process at all stages with efficiency, timeliness and expedition. Representatives or agents must not unnecessarily or unreasonably hinder, delay or intrude upon, or detract from, the earliest finalisation (whether by settlement, conciliation or hearing) of any matter before the Commission.
• Cooperate fully in exploring durable settlement outcomes with the other parties to the dispute.
• Not negotiate a settlement that the representative or agent knows to be demonstrably unfair, criminal, fraudulent or unconscionable.
• Not seek to influence the Commission member or Commission staff by means prohibited by law.
• Not communicate ex-parte with the Commission member during proceedings.
• Not engage in conduct intended to disrupt the Commission proceedings.

Lodging and replying to an "Application to Resolve a Dispute'

• Ensure that all opportunities for resolution of the dispute with the other parties have been canvassed prior to lodgement of the application or reply with Commission.
• Ensure that all documents on which the applicant or respondent relies have been lodged with the Commission and served on all other parties to the dispute, in accordance with the Workers Compensation Commission Rules 2011.
• Maintain the integrity of evidence lodged with the Commission and not introduce any evidence he or she knows to be incorrect.

Seeking a notice for the production of documents/information

• Ensure that only documents relevant to the dispute are sought through a notice for production.
• Ensure that a notice for production is only sought if necessary and not to delay the timely resolution of the matter.

Teleconferences

*    Give their full attention to the telephone conference, ensuring privacy for the discussion, without distractions. Mobile telephones should not be used in Commission telephone conferences except where unavoidable.

• Ensure that the client is involved and able to participate in the teleconference, so that timely and immediate instructions, including in relation to settlement, may be obtained.
• Be familiar with the purpose of the teleconference and be prepared to address all relevant issues.
• Ensure that all opportunities for resolution of the dispute are pursued during the teleconference.

Mediation or Conciliation Conferences

• Actively participate in the mediation/conciliation stage of the Commission's process, and assist the Mediator/Arbitrator in the exercise of his or her statutory duty to use his or her best endeavours to bring the parties to a settlement acceptable to all.
• Encourage participation of the client in the mediation / conciliation. This includes inviting employers and/or insurers to send a participant.
• Notify the worker or employer if, in the representative's opinion, it is in that party's best interests to accept a compromise or settlement, and that, in the representative's opinion, the compromise or settlement is reasonable.

Arbitration Hearings

*     Assist in the conduct of the arbitration stage of the proceedings (if the matter does not settle) with as little formality and technicality as the Arbitrator's proper consideration of the matter permits (in accordance with section 354 of the 1998 Act).

Communication with Approved Medical Specialists

Representatives of parties must not communicate directly with an Approved Medical Specialist appointed by the Commission to undertake a medical assessment for Commission purposes.

July 2011