Information for employers if a worker has lodged an appeal

When a worker lodges an appeal to the Queensland Industrial Relations Commission (QIRC), the Office of Industrial Relations manages the defence of the review decision on behalf of the respondent (the Workers' Compensation Regulator) in the QIRC.

The worker lodging the appeal is referred to as the appellant and the respondent is the Workers' Compensation Regulator.

While the effect of a decision to decline a worker's claim at review is a decision in the employer's favour this does not mean that the Workers' Compensation Regulator represents the employer's interests in the appeal. However an employer's assistance in providing information and access to relevant staff is essential to the defence of the review decision.

Can an employer join as a party to an appeal?

The legislation does not provide an employer with the right to appear as a party to a workers' appeal.

This was clarified in the Industrial Court decision of Brisbane City Council v Gillow and Simon Blackwood (Workers' Compensation Regulator) [2016] ICQ 007 where it was determined that the QIRC does not have the power to grant leave to an employer to appear and be heard in a workers' appeal. The QIRC Registry has advised that it will follow this decision in addressing any applications to be heard.

Therefore employers have no avenue to become a party to a worker's appeal or appear directly before the QIRC to present evidence and submissions to support their position in relation to the claim.

How is an appeal managed?

Following an appeal being lodged with the QIRC, an Appeals Officer from the Office of Industrial Relations will contact an employer to discuss their position regarding the appeal. An employer will be asked to nominate an appropriate contact person with whom the Appeals Officer can discuss the appeal. The Appeals Officer may request necessary evidence, statements and documents that are relevant to the appeal. If an employer is in possession of any additional information which they believe may assist the appeal, they are able to provide that information to the Appeals Officer.

In order to defend the review decision, the Office of Industrial Relations may engage legal counsel to appear at the hearing of the appeal. The legal counsel advocates for the Workers' Compensation Regulator at the hearing and is instructed by an Appeals Officer. In most cases the legal counsel will advise the Workers' Compensation Regulator on prospects of success and protect their interests.

The Appeals Officer and legal counsel may need to confer with an employer's staff as potential witnesses in the appeal, and staff may be called to give evidence in the hearing. If this is required staff will be issued with Attendance Notices detailing the time and place that they need to attend the hearing. Anyone who will not be called as a witness can watch the hearing from the public gallery.

If an Appeals Officer receives new information in the course of the appeal, details of or copies of the information may be provided to an employer for their response.

When will an appeal go before the QIRC?

An appeal will go before the QIRC in two circumstances:

• For an initial conference: this is designed to assist the parties with clarifying their case and obligations on appeal (if this is required), as well as provide details of when the matter will be heard by the allocated Commissioner.
• For a hearing: Sometimes appeals are resolved without the need for a hearing. If a hearing is needed, it can be several months before the case is heard in the QIRC.

Do employers have to attend the QIRC at any stage?

Employers or their representatives are able sit in the public gallery to observe the proceedings.  Employers should give strong consideration to having a representative available to attend the hearing so that any queries that the QIRC or the Office of Industrial Relations have can be promptly answered.

Additionally having a representative present during the hearing can assist in understanding the complexity or importance of new developments that occur during the course of the evidence. Parties to an appeal are sometimes presented with settlement options shortly before or during an appeal hearing. If an employer's representative is not present, it may be difficult for the Office of Industrial Relations to effectively obtain the employer's input to such suggestions.

What happens if the Office of Industrial Relations' position changes?

The appeals process involves a de novo hearing where the parties will be required to present all the evidence relevant to the claim to the QIRC for its determination.

The Appeals Officer will conduct further investigations as necessary to gather sufficient evidence to confirm the position and the appellant may introduce new evidence during the appeals process.

Any additional information will be carefully considered by the Office of Industrial Relations to determine its ongoing prospects of success in defending the appeal. Because the Office of Industrial Relations represents the State of Queensland, it is expected to act as a model litigant, which means acting consistently in the handling of claims and litigation, avoiding purely technical defences where the State will suffer no prejudice by not doing so, and avoiding defending appeals where the State does not believe it has reasonable prospects for success, among other things.

The Office of Industrial Relations may decide that the appeal should be conceded or compromised rather than proceed to a hearing. If this occurs the Appeals Officer will contact the employer to explain reasons for the Office of Industrial Relations' position, the employer's rights, proposed orders the QIRC will issue and what will happen next for the worker's claim. The Appeals Officer will also provide this information in writing.

Will an appeal decision affect an employer's premium?

The QIRC's decision may have an effect upon future premium calculations issued by WorkCover. If an employer is concerned about the effect of a decision on their WorkCover premium, they can contact their WorkCover customer advisor (from their latest premium notice).

Need some advice?

Employers may seek their own legal advice, however it is at the employer's expense. An Appeals Officer is unable to guide or advise an employer about whether to seek legal advice.

The Queensland Government provides funding to the Chamber of Commerce & Industry Queensland (CCIQ) to provide an independent Workers' Compensation Information Service to Queensland employers. This service is free and employers do not need to be members to access this service.

CCIQ can be contacted by telephone on 1300 365 855 or by email workcoverinfo@cciq.com.au.

Employers can also visit the CCIQ website for more information about this service.

The Queensland Law Society can refer employers to law firms in their geographic location that are experienced in insurance matters.