Document ID: chunk:federal_register_of_legislation:C2006C00643:clause:2_170ed:p1
Version: federal_register_of_legislation:C2006C00643
Segment Type: clause
Provision Reference: sch 2 cl 170ED (pt 1/2)
Character Range: 13084–15760

170ED  Referral to the Court

 (1) If any of the parties to a conciliation who are invited, under subsection 170EB(2), to elect to have the matter to which the conciliation relates dealt with by consent arbitration do not make that election, the Commission must refer the application relating to the matter to the Registrar of the Court accompanied by a certificate:
 (a) that specifies the matter; and
 (b) that states that the Commission has been unable to settle the matter by conciliation within a reasonable period and that the parties have not so elected.

 (2) When the Commission refers the application and certificate to the Registrar, the application is taken to have been duly lodged with the Court as an application for a remedy in respect of the termination.

 (3) The Court must not consider the merits of an application unless it has been referred by the Commission in accordance with subsection (1).

 (4) The Court must decline to consider or determine an application referred to it by the Commission if it is satisfied that the employee by whom, or on whose behalf, the application was lodged is entitled to apply for an alternative remedy in respect of the termination under a law of the Commonwealth, a State or a Territory that satisfies the requirements of Articles 4 to 11 of the Termination of Employment Convention.

 (5) Without, by implication, limiting the circumstances in which a law of the Commonwealth, a State or a Territory will be taken to satisfy the requirements of Articles 4 to 11 of the Termination of Employment Convention, such a law satisfies those requirements if:
 (a) it expressly requires the body determining applications for a remedy in respect of termination of employment to give effect to those Articles; and
 (b) that body has sufficient jurisdiction and appropriate powers to so determine those applications.

 (6) For the purposes of subsection (4), an employee does not cease to be entitled to apply for an alternative remedy under a law of the Commonwealth, a State or a Territory because the employee requires an extension of time within which to make such an application if the body to which the application is to be made:
 (a) is required to grant such an extension if the extension is sought:
 (i) within a reasonable period after the Court declines to consider the application made to it; or
 (ii) within a specified period after the Court so declines that is reasonable within the meaning of the Termination of Employment Convention; or
 (b) has a general discretion to grant extensions and is required, in the exercise of that discretion, to give effect to the Convention.

 (7) In this section, a reference to a