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LawAccess NSW > Representing Yourself - LawAssist

Presenting your case at arbitrati​on​

Presentin​​g your case at arbitration - Step by step guide

​Step 1: Before ​arbitration

Plan to arrive at the Fair Work Commission (the Commission) early to give yourself time to find the courtroom and get organised. Check the list on the wall for the name of your case and which courtroom the arbitration will be in. It is a good idea to let the Commission staff in the court room know who you are.

If you are running late, contact the Commission as soon as you can and explain when you will arrive.

The Commission member may adjourn (close) the courtroom for morning tea, usually around 11:30am, or for lunch, usually from 1:00pm to 2:00pm. You may have to leave the courtroom during these breaks. You can check with the court officer or the registry what time the courtroom will reopen or if you can remain in the courtroom.

Handy Icon  Don't forget to turn off your mobile phone before going into the courtroom.

Step 2: What to​ do and say in arbitration  

Tell someone when you​​ arrive

When you arrive there will be some staff from the Commission there:

  • the court reporter (not a Commission staff member), who will be audio recording arbitration
  • the associate (an assistant) to the Commission member that is hearing your case.

You should tell the associate you are there. They may ask you to fill in a sheet listing your name and contact details. 

Ask the associate what ​to call the member of the Commission

Arbitrations are held before a member of the Commission. You can call them by their title for example deputy president or commissioner. The associate can tell you what title to use.

Get organi​sed

If your case is the only case listed in the hearing room at that time, you can sit at the bar table at the front. Get out your papers and arrange them so you can find things when you need them during the hearing.

You should sit on the right hand side of the bar table, if you are standing facing the Coat of Arms where the Commission member sits. If there are other cases listed at the same time, sit at the back of the hearing room and wait for your case to be called.

Stand when the Commission ​member comes into the room

You will hear a knock on the door and the associate will ask everyone to stand. It is usual to bow your head to the Commission member when he or she arrives. The associate will ask everyone to sit down and then the arbitration will start.

Stand up when you a​re talking

When you are talking to the Commission member or asking a witness questions, you should stand up.

Be p​olite

You should always be polite to the Commission member, other court staff and the other party. Refer to the other party or their lawyer as Mr/Ms and their surname. Don't interrupt when the Commission member or the employer is talking.

For more information, see What to do, say and wear in court in the 'What you should know' topic of this website.

Step 3: Adjourn​​ments 

Sometimes you might want to ask the Commission member to postpone arbitration to another date. This is called an 'adjournment'. The Commission member may not agree to this unless there is a very good reason. For more information about seeking an adjournment, see Preparing for arbitration.

Step 4: A​rbitration  

Possible settle​ment

The first thing the Commission member may do is ask you and the employer if there is any chance of the case being settled. If both you and the employer agree, the Commission member will give you time to go outside the courtroom and discuss settling the case.

Many cases settle in this way just before arbitration starts. If you come to an agreement there are two ways to end the case.

  1. Consent orders
    You can ask the Commission member to turn your agreement into orders. These are called consent orders. These are binding on both parties.

  2. Terms of agreement
    You can ask the Commission member for an adjournment so the parties can write up and sign terms of agreement. 

Checking docu​ments

If you don't settle the case, the Commission member will continue with arbitration. They will go through the witness statements and other evidence that has been sent to the Commission and check that:

  • received all the documents from the employer
  • your employer received all the documents from you
  • the Commission has all the documents that both you and your employer have.

If any of the witness statements or other evidence were served late, there will be discussion about whether this evidence can be used. The Commission member may decide that the witness statements and/or other evidence cannot be used. If the Commission member will not let you use your evidence, it is possible to ask for an adjournment to give the other side time to consider your evidence so that it can be used in your case. If the Commission member does not give you an adjournment you will have to continue your case without that evidence or settle your case with the other side.

Presenting you​​​r case

The Commission member will ask you to speak first, as you made the claim and started the case. When asked to present your case, you should:

give a summary of your case

  • refer to evidence that supports your case
  • refer to your witness statements and other evidence
  • talk about any sections of your employer’s witness statements and evidence that you disagree with or any places where there are inconsistencies or contradictions.

Handy IconYou should have already filed and served your outline of submissions. Make sure that you introduce all the evidence that your outline of submissions said you would provide.

You can speak from prepared notes. This can be helpful if you are nervous.

The Commission member may ask you some questions or ask you to explain some things in more detail.  The Commission member may also ask you to move on to another point if they feel you have said enough about a certain issue or that you are speaking about something that is not relevant to the case.

If you want to talk about the law that applies to your case, you should do this after you have talked about your evidence.

You should not speak rudely or abusively about the other party. Stick to the facts and the evidence and be calm and polite.

Witnes​​ses

Tell the Commission member when you are ready for your witness to give evidence.

The associate will take them to the witness box and ask them to make an oath or affirmation. Both of these are a promise to tell the truth. An oath is made on a religious basis (for example swearing on a bible), an affirmation is not.

Ask the witness to tell the court their name, address and occupation. Then ask them to confirm that their witness statement is true and correct. You can also ask them any questions you have prepared about their witness statement.

After you have finished asking the witness questions, the other party will have a chance to question the witness. This is called 'cross-examination'.

After the cross examination, you will be asked if you want to ask the witness any further questions. This is called 're-examination' and is a chance for you to clarify anything that was raised with the witness in cross examination.

Your witnesses will go first. Your employer will then be able to call their witnesses. You will have the chance to cross examine your employer’s witnesses.

The employer presents their​ case

When you have finished speaking, the Commission member will ask your employer to speak. It is important that you don't interrupt your employer or their representative when it is their turn to speak. Instead, you can make some notes about anything you want to comment on or clarify. At the end, you will be asked whether there is anything else you want to say.

Final submissions

After both sides have presented their evidence, you will usually both be given a final chance to talk. This is called 'final submissions'.

Final submissions can cover:

  • a summary of your evidence
  • the problems and weaknesses of your employer's evidence
  • what you say about how the law applies to your case
  • what orders you are asking the Commission to make.

Step 5: The de​cision  

The Commission member may not make a decision straight away. Instead, they may reserve their decision, which means they will take some time to think about your case before they make any orders.

For more information, see The decision.

For answers to commonly asked questions, see Going to the Fair Work Commission - Frequently Asked Questions.