Extension of time for Application under Section 106:

An application under Section 106 of the Industrial Relations Act 1996 (NSW) for unfair contacts must be made within a specific period of time.

Where an individual wants to apply to have his contract considered by the Industrial Relations Commission for unfairness, and the time within which that application is to be made has elapsed, that person can retain an industrial relations solicitor to apply for an extension of that time. The industrial relations lawyer will make submissions to the Tribunal under section 108B(3). That section reads:

Time for making application

(1) An application for an order under this Division in relation to a contract that has been terminated must be made not later than 12 months after the termination of the contract.

(2) The Commission does not have jurisdiction to extend the time for making any such application or, subject to subsection (3), to accept an application made after the time prescribed by subsection (1).

(3) The Commission may accept an application made within 3 months after the time prescribed by subsection (1) if the applicant satisfies the Commission that there are exceptional circumstances justifying the making of the late application.

There has been a growing body of case law which discusses the manner in which section 108B operates. The main question that an industrial relations litigator will need to consider are the factors and criteria that the Commission may take into consideration when making a determination in respect of an application for extension of time to file an application to review a contract for unfairness under section 106. Generally, those factors and criteria can include the following:

• The length of the delay in filing the application;
• The explanation for the delay in filing the application;
• The prejudice to the applicant if the extension of time is not granted by the Commission;
• The prejudice to the respondent if the extension of time is granted by the Commission;
• Action taken by the applicant in respect of the industrial relations contract dispute;
• Any relevant conduct of the respondent in relation to the industrial relations dispute;
• The nature and circumstances of any representative error; and
• The applicant's prospects of success at the substantive hearing of the disputed industrial relations issues.

The following issues will also likely be born in mind by the Commissioner when considering the application for an extension of time:

• Prima facie the time limits should be complied with;
• There is public interest in the prompt institution and prosecution of litigation;
• Ignorance of the law is no excuse;
• The onus rests on the applicant to demonstrate sufficient reason to justify an extension;
• Each case must be considered on its own facts and circumstance;
• The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time;
• The discretion to allow out of time applications is directed towards ensuring that justice is afforded to both parties; and
• Considerations of fairness as between the applicant and other persons in a like position are relevant to the exercise of discretion.

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