INDUSTRIAL DISPUTE RESOLUTION
Pre and post WorkChoices
Rob Stevenson Partner, Nathan Lawyers
INDUSTRIAL DISPUTE RESOLUTION pre and post WorkChoices1 By Rob Stevenson Partner, Nathan Lawyers
1. INTRODUCTION
A system of industrial dispute resolution has evolved over the last 100 years in which the state and federal industrial commissions have played a pre-eminent (almost parental) role. The commissions have wide ranging powers to prevent and settle industrial disputes by compulsory conciliation and arbitration and a significant body of law has developed in this area. Since the election of the federal coalition government in 1996, there have been attempts to give greater emphasis to the resolution of disputes at the workplace level without the involvement of the industrial commissions. These efforts have occurred during an extended period of industrial peace and economic prosperity.
The advent of the Workplace Relations Amendment (WorkChoices) Act 2005 (Cth) effectively sweeps away a body of law and practice which has developed over the last 100 years and seeks to remove the commissions from their prominent involvement in workplace dispute resolution whether on an industrial or individual basis.
This paper considers the pre and post WorkChoices systems and the implications that WorkChoices has for dispute resolution in Australia as well as posing some practical problems for resolution.
2. THE PRE WORKCHOICES SYSTEM OF INDUSTRIAL DISPUTE RESOLUTION
a. Federal dispute resolution under the Workplace Relations Act 1996 (Cth) pre WorkChoices (“WRA”)
One of the principal objectives of the WRA is to ensure that the primary responsibility for industrial relations outcomes rests in the hands of employers and employees. Notwithstanding this stated objective, the current Part VI of the WRA contains an extensive dispute prevention and settlement regime involving the Australian Industrial Relations Commission (“AIRC”).
The main objects of Part VI are the protection of wages and conditions by a system of enforceable awards which are to act as a safety net. The general functions of the AIRC under Part VI are primarily to prevent and settle industrial disputes so far as possible by conciliation and as a last resort and within the limits specified in the WRA, by arbitration. The AIRC is required to perform its functions in way that furthers the objects of the Act and in particular the objects of Part VI and is subject to significant legislative direction in the exercise of its powers under this Part.
The term “industrial dispute” is not itself defined in the WRA and has been the subject of much judicial consideration over the years. A broad view of the term is currently accepted. Actual workplace conflict, whether in the form of industrial action or otherwise is not a prerequisite. Rather,
“the essential quality of an industrial dispute is not the suspension of industrial relations but disagreement, difference or dissidence”.
For the purposes of the WRA, industrial disputes are limited to disputes about allowable award matters unless exceptional issues are involved which the parties have made a genuine attempt to resolve and a harsh or unjust outcome would apply if the matter was not included in the industrial dispute. The main instances of industrial disputes at a state and federal level are: Practical (which may also be described as “real”, “flesh and blood”, “spontaneous”, “immediate”) disputes about individual and group terms and conditions;
Paper disputes arising from a log of claims;
Disputes about the interpretation of awards and agreements;
Disputes about the application of awards and agreements;
Demarcation disputes.
Disputes can involve an individual employee or group of employees and an employer, unions, groups of employers and employer organisations. Disputes may be notified to the AIRC in the following situations:
An alleged industrial dispute must be notified to the Commission by a registered organisation (of employees or employers) when its members are affected by a dispute or by an individual employer affected by a dispute. There is a statutory duty on organisations and employers involved in industrial disputation to notify the Commission of a dispute as soon as they become aware of its existence;
A federal government minister may notify the commission of a dispute if he or she becomes aware of its existence;
The commission may, on its own motion, commence proceedings when it becomes aware of a dispute; and
The AIRC can be involved in dispute settlement in a private capacity where the parties agree pursuant to a certified agreement or AWA.
Whilst the AIRC has significant dispute settling powers, parties are encouraged to attempt to resolve their disputes internally without approaching the AIRC. Dispute settling procedures are an allowable award matter. AIRC members are required to encourage the parties to agree on grievance procedures with a view to including them in awards. Where an award places an obligation on parties to attempt certain dispute settlement procedures prior to bringing a dispute to the notice of the AIRC, the clause usually requires the employee involved, or a shop steward, to negotiate with their immediate management, and then with higher levels of union and management involvement if the initial efforts are unsuccessful. If this process is still unsuccessful then the dispute is to be notified to the AIRC. The AIRC can have regard to whether the parties have followed the dispute settlement procedures under an award to which the parties are bound in deciding whether to exercise its powers in relation to the industrial dispute.
Certified agreements must include procedures for preventing and settling disputes between the employer and the employees covered by the agreement about matters arising under the agreement. Australian Workplace Agreements must also include a dispute resolution procedure and a model procedure is prescribed by regulation.
Procedures for preventing and settling disputes in a certified agreement may, if the AIRC approves, empower the AIRC to settle disputes over the application of the agreement and may appoint a board of reference for the purpose of settling the dispute. These provisions have given rise to what is known as “private arbitration” by the AIRC. There has been a significant growth in the number of disputes coming before the AIRC in this way.
A dispute notified to the AIRC (or coming to the AIRC’s attention) is, in the normal course of events, assigned to the commissioner responsible for the industry in which the dispute occurred, and that member is required to ascertain the relevant aspects of the dispute (ie existence of the dispute, its parties and subject matter) and then endeavour to settle the matter by way of conciliation and (if necessary) arbitration.
A number of general comments about the conciliation process can be made:
The action the AIRC may take includes the arranging of conferences between the parties and others in which the AIRC chairs the conferences. The member of the Commission presiding normally sits at the Bar table with the parties and their representatives. The subject matter of the dispute is discussed in an informal manner and it is rare that a transcript is taken of the conference proceedings. Depending on the precise matters in dispute and the respective attitudes of the parties, the Commission may send the parties away to confer among themselves and to report back on progress. This is more often the case where the proceedings are part of negotiations for a new industrial award.
In cases of specific industrial disputes, the member will meet with each party separately and discuss the matters in issue. This allows each party to air their grievances and indicate points of compromise unfettered by the presence of the other, and allows the member to move between each party seeking an ultimate point of compromise.
Conciliation proceedings are confidential. The member conducting the conciliation proceeding cannot disclose anything said or done in the conciliation proceeding in relation to matters still in dispute. Further, evidence cannot be given in any arbitration proceeding of anything said or done in a conciliation process in relation to unsettled matters unless the parties agree. Conciliation proceedings may be regarded as completed, where the parties have reached agreement for the settlement of the dispute or the member is satisfied that there is no likelihood that further conciliation within a reasonable period will result in agreement or the parties have informed the member that there is no likelihood of agreement. If the matter is not resolved, it may proceed to arbitration (which can be subject to appeal).
b. Dispute resolution in Queensland under the Industrial Relations Act 1999 (Qld) (“IRA”)
The Industrial Relations Act 1999 (Qld) makes legislative provision for dispute settlement procedures in Queensland. The IRA defines an “industrial dispute” as:
a dispute, including a threatened or probable dispute, about an industrial matter; a situation that is likely to give rise to a dispute about an industrial matter.
In turn, an “industrial matter” is a matter that affects or relates to:
work done or to be done; or the privileges, rights or functions of- -
employers or employees; or persons who have been, or propose to be, or who may become, employers or employees; or
a matter (whether or not an industrial matter as defined) that the court or commission considers has been, is, or may be a cause or contributory cause of an industrial action or industrial dispute.
Schedule 1 to the IRA contains an extensive list of things that are industrial matters ranging from hours of work to:
“what is fair and just, considering the interests of the persons immediately concerned and the community, according to the standard of the average good employer and the average competent and honest employee in all matters relating to the relations of employers and employees, whether or not the relationship of employer and employee exists or existed . . .”
The terms are clearly of broad application.
Every industrial agreement or award is required to make provision for a grievance or dispute settling procedure. If the parties cannot agree on the form of this provision, the Queensland Industrial Relations Commission (“QIRC”) must itself insert appropriate provisions.
Dispute resolution provisions at a state level usually provide for: Initial discussion between the employee involved, and/or a shop steward, and the immediate supervisor; If this is not successful, then the matter is to be raised with the higher levels of management; If this is not successful, the matter must be referred to the Commission.
The IRA sets out various means by which industrial disputes may be prevented or settled. Where an industrial dispute exists between an employer organisation or employer and a union or an employee, and the parties have genuinely attempted to settle it without success, then each party must immediately notify the Registrar that a dispute exists. Notification can be made by letter, telex, fax, email or any other means of written communication. It must indicate the names of the parties, the place where the dispute exists, the subject matter of the dispute and anything else required under the rules. If the Minister is aware an industrial dispute exists, the Minister can notify the Commission or Registrar of the dispute.
The QIRC has the power to intervene in the public interest. Even where no party has notified the Registrar of a dispute, the QIRC can take steps it considers appropriate to prevent or settle the dispute by conciliation in the first instance and by arbitration if the commission considers conciliation has failed and the parties are unlikely to resolve the dispute.
The QIRC has broad powers for the prevention and prompt settlement of disputes.
In addition to these broad powers, the QIRC may specifically:
Direct the industrial action to stop or not to take place; Make orders or give directions of an interlocutory nature; Exercise the Commission’s powers under s.277 to grant an interim injunction; Make another order or exercise another power the Commission considers appropriate for the prevention or prompt settlement of the dispute.
The QIRC has a considerable reputation for its willingness to travel to parts of the state remote from Brisbane and to work out of ordinary hours. Members are generally available to travel to the site of a dispute on short notice and convene conferences or hearings on site or wherever necessary to expeditiously deal with a dispute.
The QIRC may also act as a mediator in an industrial cause, whether or not it is within the jurisdiction of the Commission. It may do this either on the request of the parties directly involved in the cause or if the Commissioner is satisfied mediation is desirable in the public interest. The Industrial Relations (Tribunals) Rules 2000 expand upon the uses to which mediation may be put.
It can be seen that the QIRC has almost plenary powers in relation to industrial dispute resolution falling within its jurisdiction.
3. THE POST WORKCHOICES SYSTEM OF INDUSTRIAL DISPUTE RESOLUTION (“Amended WRA”)
a. Legislative provisions
The old Part VI has been repealed and the new Part VIIA of the Workplace Relations Amendment (Work Choices) Act 2005 replaces the majority of the old Part VI with only some provisions being retained. By way of overview, Part VIIA has three main components:
Firstly, the Part sets out a model process to be used to resolve disputes arising under federal awards, workplace agreements, the Fair Pay and Conditions Standard and other industrial instruments;
The intended focus of the new provisions is to encourage parties to attempt to resolve disputes between themselves, either at the workplace level or with the assistance of a third party of their choice (and presumably without reference to the AIRC).
The new Part is divided into several divisions.
Division 1 - Preliminary
The objects of the Part are:
to encourage employers and employees who are parties to a dispute to resolve it at the workplace level; and
to introduce greater flexibility for the resolution of disputes by allowing the parties to determine the best forum in which to resolve them.
It is important to note that parties can take court action to resolve their dispute even if a model dispute resolution process, ADR process or any other dispute resolution process applies to a particular dispute.
Division 2 – Model dispute resolution process
The Part sets out a model dispute resolution process, which applies if it is contained in an award, a workplace agreement, workplace determination or other provision of the WRA. Examples given of situations in which the model process applies are:
disputes about entitlements under the Australian Fair Pay and Conditions Standard;
disputes about the terms of a workplace agreement, where the agreement itself includes the model dispute resolution process or is taken to include that process;
disputes about the application of a workplace determination;
disputes about the application of awards;
disputes dealing with meal breaks, public holidays and parental leave.
Under the model dispute resolution process, the parties are required to genuinely attempt to resolve the dispute at the workplace level. A note in the amended WRA states that this may involve an affected employee first discussing the matter in dispute with his or her supervisor, then with more senior management.
If a matter in dispute cannot be resolved at the workplace level, then a party may elect to use an alternative dispute resolution process in an attempt to resolve the matter and the parties are to agree to a person to conduct that process.
If the parties cannot agree on an ADR provider, then either party may notify the Industrial Registrar who will provide “prescribed information”. The information prescribed by the new regulations is:
-
information about the dispute resolution services that are provided by the AIRC and the dispute resolution services that may be provided by private providers; information about the register of private dispute resolution bodies providing ADR processes; information about funding that may be available to help subsidise the cost of ADR processes.
If the parties cannot agree on a provider within 14 days of the information being provided by the Registrar, either party may apply to have the AIRC conduct the ADR process. The parties must genuinely attempt to resolve the dispute if they use the ADR process.
While the dispute is being resolved, an employee who is a party to the dispute must continue to work in accordance with their contract of employment (unless they have a reasonable concern about an imminent risk to their health or safety and comply with any reasonable direction given by their employer perform other available work).
Division 3 – ADR process conducted by AIRC under model dispute resolution process
An alternative dispute resolution process is defined to include:
conferencing; mediation; assisted negotiation; neutral evaluation; case appraisal; conciliation; arbitration, or other determination of the rights and obligations of the parties in dispute; or a procedure or service specified in the regulations.
A person can apply to have the AIRC conduct an ADR process if the dispute is one that may be resolved using the model process (whether under an award, workplace determination, workplace agreement or other provision of the Act) and the parties have been unable to resolve the dispute at the workplace level.
An application to the AIRC must:
be in the prescribed form; describe the matters in dispute in relation to which the ADR process is to be conducted; be signed by the party to the dispute making the application; and specify that the model resolution process is to be used.
The AIRC may request further information about the matters in dispute and the steps taken to resolve the matter at the workplace level.
The AIRC can allow an amendment of the application and correct, amend or waive any error, defect or irregularity whether in substance or form in the application.
The AIRC must refuse to conduct an ADR process if:
the dispute is not one that may be resolved using the model process; the matter is the subject of proceedings or has already been settled as the result of proceedings relating to the prevention of discrimination or equal opportunity.
The AIRC may also refuse if the parties have not made a genuine attempt to resolve the dispute at the workplace level or to reach agreement on who would conduct the process.
The action that the AIRC may take includes arranging conferences of the parties or their representatives at which the AIRC is present and arranging for the parties/representatives to confer amongst themselves at conferences at which the AIRC is not present. The AIRC is required to, as far as practicable:
However, the AIRC does not have the power to:-
compel a person to do anything; arbitrate the matters in dispute; otherwise determine the rights or obligations of a party to the dispute; or make an award, order or appoint a board of reference in relation to the matters in dispute, even if the parties agree that this should be done.
The AIRC may permit a party to be represented in the ADR process. The AIRC may also make recommendations about particular aspects of the matter if the parties request it to do so.
The AIRC must conduct the ADR process in private and must not disclose or use any information or document given to it in the course of conducting the ADR process to any person unless:-
the information or document is disclosed or used for the purpose of conducting the process; the parties to the process consent to the disclosure or use; the information/document is disclosed or used in circumstances specified in regulations; or the disclosure/use is otherwise required or authorised by law.
Evidence of anything said or any act done in the ADR process is not admissible:
in proceedings relating to the dispute in any court; before a person authorised by law to hear evidence; before a person authorised by the consent of the parties to hear evidence;
unless the parties agree to that evidence being admissible, or the evidence is admitted in circumstances specified in regulation.
The ADR process is completed when the parties agree that the matters in dispute are resolved, or the party who elected to use the ADR process informs the AIRC that they no longer wish to continue with the process.
Division 4 – ADR process used to resolve other disputes
A person can apply to the AIRC to have an ADR process conducted by the AIRC regarding matters in dispute if the dispute arises in the course of bargaining for a proposed collective agreement, and all parties agree that the process is to be conducted by the AIRC.
The application must:-
Be in the form (if any) prescribed by regulation; Describe the matters in dispute for which the ADR process is to be conducted; Be signed by the party making the application; and Specify that the ADR process is to be conducted in relation to a dispute on a matter arising in the course of bargaining for a proposed collective agreement.
The AIRC may request the parties to provide further information about the matters in dispute.
The AIRC must refuse to conduct the ADR process if the above conditions are not met. The AIRC’s powers in relation to these disputes are similar to those set out in Division 3. Similar provisions also exist in relation to privacy and completion of the ADR process.
Division 5 – Dispute resolution process conducted by the AIRC under a workplace agreement
The AIRC may conduct a dispute resolution process on application by a person if:
Formal application must be made to the AIRC for the dispute resolution process to be conducted and the application must specify that the dispute resolution process is to be conducted under the terms of a workplace agreement and not under the model dispute resolution process.
The AIRC may request the parties to provide further information about the matters in dispute and the steps that have been taken to resolve the dispute. A workplace agreement must include a dispute resolution process but it may be something other than the model dispute resolution process.
The AIRC must refuse to conduct a dispute resolution process if: the dispute is not one that can be resolved using a dispute resolution process under the terms of the workplace agreement; or any of the steps under the terms of the agreement have not been taken prior to the matter being referred to the AIRC.
The AIRC has the functions and powers given to it under the workplace agreement or otherwise agreed by the parties. The AIRC does not have the power to make orders.
The AIRC must also act quickly, in a way that avoids unnecessary technicalities and legal forms and in accordance with the agreement between the parties. Privacy provisions also apply to this process.
Division 6 – Dispute resolution process conducted by another provider
Interestingly, although dispute resolution by a private provider appears to be the preferred process under the opening provisions of the Part, the mechanical provisions for that process are placed last in the Part after those provisions relating to the AIRC.
The person conducting the ADR process may allow a party to be represented if they believe it is appropriate to do so and they may set reasonable limits on the conduct of the representatives in relation to the process.
The person conducting the process must allow the party to be represented if the process is conducted under the terms of a workplace agreement and the agreement makes provision for a party to the dispute to be represented. The person conducting the process is bound by privacy requirements similar to those set out above. There are pecuniary penalties for failure to observe those provisions.
A person must not conduct an ADR process if the dispute is the subject of proceedings or has already been settled as a result of proceedings relating to the prevention of discrimination or equal opportunity.
b. Observations on new provisions
The new model seeks to introduce greater flexibility for the resolution of disputes, by allowing the parties to determine the best forum in which to resolve them. The federal government promised in the lead up to the release of the legislation to maintain employee and employer access to the AIRC. However, the intention of the legislation is clearly to direct parties away from the traditional avenues of industrial dispute resolution, those being the state industrial tribunals and the AIRC. The legislation requires the parties to seek to engage a person agreed on by the parties, and it is only in the event that they cannot agree on a third party to conduct the process that the dispute may be referred to the AIRC.
A number of observations can be made and questions raised about the new provisions:
The often robust nature of assistance and persuasion applied by members of the AIRC to help resolve disputes is sought to be reined in by limiting the conciliator’s powers. The AIRC cannot convene compulsory dispute conferences and cannot force people to attend nor does it have the ability to make or enforce orders, regardless of whether the parties to a dispute agree to it doing so;
The AIRC will only have the power to arbitrate and make limited determinations where the parties agree in a collective or individual agreement for it to have this power. It will only be able to use the powers expressly conferred upon it by the parties in doing so. Any appeal rights will only arise if set out in the agreement. The AIRC will not be able to arbitrate over bargaining for collective agreements, even where all parties agree;
ADR processes are to be conducted by the AIRC in private, and publication of decisions or transcripts in respect of these processes is prohibited. There will be no public record of the outcome of disputes given there is no formal system of arbitration and determinations of disputes by private arbitration will not be public documents. It will make it difficult for a consistent system of precedent to evolve;
There may be an evolution in the types of processes used to resolve disputes given the different types envisaged by the inclusive definition of ADR process. A greater variety of processes are possible for dispute resolution including case appraisal, which may be similar to arbitration. However, these mechanisms are likely to have limited force given there are no consequences in the legislation for failing to abide by them;
For dispute resolution under a workplace agreement, the AIRC is to act in accordance with any agreement between the parties about how to conduct the dispute. There will accordingly be a need for detailed provisions either in the workplace agreement or by subsequent agreement between the parties about the AIRC’s powers and conduct of the process.
It is likely that there will be greater referral to a system which offers some certainty and authority, namely the common law. It is likely that parties will increasingly look to the courts and seek remedies such as declarations and injunctions to address their concerns. However, the costs of seeking remedies in the courts may be a significant deterrent to individuals and smaller employers.
c. But wait, there’s more - Transitional arrangements
Transitional arrangements for dispute resolution are contained in the new Schedule 13 to the WRA. Many of the AIRC’s current powers are retained for these purposes but there are some important differences.
i. Transitional arrangements for parties bound by federal awards
The functions of the AIRC are to prevent and settle industrial disputes so far as possible by conciliation and as a last resort and within the limits of the AIRC’s powers under the Schedule, by arbitration. The AIRC may vary a transitional award as permitted by clause 29 of the Schedule but must not make any new awards.
Part 3 of Schedule 13 deals with the AIRC’s powers and procedures for dealing with industrial disputes. The AIRC may deal with an industrial dispute by conciliation as long as the industrial dispute is about any allowable transitional award matter. In summary, allowable transitional award matters are:
Classifications of transitional employees and skilled based career paths; Ordinary times hours of work, rest breaks, notice periods and variations to working hours; Rates of pay generally; Incentive based payments, peace rates and bonuses; Annual leave and annual leave loadings; Personal/carers leave; Ceremonial leave; Leave for the purpose of seeking other employment after the giving of notice of termination by an employer to an employee; Parental leave; Public holidays and payment therefore; Days to be substituted for or a procedure for substituting public holiday days; Monetary allowances; Overtime, casual or shift work loadings; Penalty rates; Redundancy pay; Stand down procedures; Dispute settling procedures; Type of employment; Pay and conditions for outworkers.
Matters that are not allowable transitional award matters include but are not limited to:-
Rights of an organisation to participate in or represent a transitional employer/employee in a dispute settling procedure unless that organisation is the representative of choice of the employer/employee; Conversion from casual employment to other type of employment; The number or proportion of transitional employees that may be employed in a particular type of employment or in a particular classification; Prohibitions on a transitional employer employing transitional employees and a particular type of employment, or particular classification; Maximum or minimum hours of work for regular part time transitional employees; Restrictions on the range or duration of training arrangements; Restrictions on the engagement of independent contractors and requirements relating to their conditions of engagement; Restrictions on the engagement of labour hire workers; Union picnic days; Tallies in the meat industry; Dispute resolution training leave; Trade union training leave; Terms involving discrimination and preference; Terms about rights of entry; Enterprise flexibility provisions.
Division 3 of Part 3 of Schedule 13 sets out the procedure for dealing with industrial disputes. The procedures are similar to those under the previous legislation. An entitled organisation or a transitional employer may notify the relevant presidential member or a registrar of an alleged industrial dispute affecting the organisation or its members, or affecting the employer. An entitled organisation is one that is bound by a transitional ward, at least one member of the organisation is a transitional employer or a transitional employee that is bound by the transitional award and the organisation is entitled under its eligibility rules to represent the industrial interests of that member.
The relevant presidential member must, unless satisfied that it would not assist the prevention or settlement of the alleged industrial dispute, refer it for conciliation by him or herself, or by another member of the AIRC. If the presidential member does not refer the alleged industrial dispute for conciliation, they must publish reasons for not doing so and the AIRC must deal with the alleged industrial dispute by arbitration.
The AIRC has similar powers under these transitional provisions to those existing in the pre WorkChoices WRA.
Where an industrial dispute has not been able to be resolved despite genuine efforts to do so, a party to the industrial dispute may apply to the AIRC for an order that the transitional award to which the industrial dispute relates cease to bind the transitional employer affected by the industrial dispute and the Commission must make the order sought if it is satisfied that genuine efforts were made to resolve the industrial dispute.
ii. Transitional arrangements for existing pre-reform federal agreements – Schedule 14
The dispute resolution provisions in existing federal certified agreements and AWAs continue to have force.
iii. Transitional treatment of state employment agreements and state awards – Schedule 15
A notional agreement preserving state awards is taken to include a term requiring disputes about the application of the agreement to be resolved in accordance with the model dispute resolution process, and any term that would otherwise deal with the resolution of those disputes is void to that extent.
A preserved collective state agreement is also taken to include a term requiring disputes about the application of the agreement to be resolved in accordance with the model dispute resolution process and any term that would otherwise deal with the resolution of those disputes is void.
A preserved individual state agreement is taken to include a term requiring disputes about the application of the agreement to be resolved in accordance with the model dispute resolution process. Any term of the preserved individual state agreement that would otherwise deal with the resolution of those disputes is void to that extent.
4. CONCLUSIONS
According to one respected commentator, WorkChoices brings about a phased demolition at federal and state level of the institutional structure of conciliation and arbitration for the prevention and settlement of industrial disputes. Perhaps the most significant change is the reduction in the AIRC’s powers to force resolution of disputes. The AIRC still has the ability to play a prominent role in industrial dispute resolution, but the extent to which it does so or is allowed to do so remains to be seen and depends on how active parties are in seeking conciliators other than the AIRC. There is also scope for more creative use of ADR processes if parties so desire. Unions will still have a role in representing parties to disputes but their influence is likely to be lessened. However, the changes are likely to significantly change the landscape of industrial dispute resolution in this country over time.
5. QUESTIONS
Question 1
A worker is employed by a constitutional corporation subject to a state award. They have a dispute with their employer regarding their terms and conditions of employment. What are their options for resolution of the dispute? What difference does it make if the transitional period has ended?
Question 2
An employee of a constitutional corporation subject to a state award has been suspended whilst an investigation is conducted into certain allegations against them. The employee considers this action to be a sham and that the employer wants the employee out of the workplace so that they can then dismiss the employee? How can the employee raise a dispute in the AIRC about the matter? Question 3 An employee covered by a federal pre-reform agreement has a dispute about the application of the agreement. What are the options for resolution?
Question 4
Can unions be involved in dispute resolution under the amended WRA? How?
Question 5
Does it matter if the nominal expiry date of the agreement has passed?
Question 6
What will be a party’s remedy if one party withdraws consent to be bound by determination?
Question 7
An employer and employee subject to a federal award have consented to a dispute being the subject of an ADR process by the AIRC. However, they cannot agree on the documents to be referred to by the AIRC in assisting them to resolve the dispute? How can this impasse be resolved? 6. SCHEDULE
a. Form 5 Application to the Commission to have a dispute resolution process conducted(regulation 13.2)
Workplace Relations Regulations 2006, regulation 13.2 AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION APPLICATION TO HAVE A DISPUTE RESOLUTION PROCESS CONDUCTED [Name of applicant] applies to the Commission to have a dispute resolution process conducted under [insert Division 3, 4 or 5] of Part 13 of the Workplace Relations Act 1996. The matter in dispute relates to [description of matters in dispute]. Note Identify: (a) the provision(s) in the Workplace Relations Act to which the dispute relates (for example, a particular entitlement that is guaranteed by the Australian Fair Pay and Conditions Standard); or (b) the award or workplace agreement to which the dispute relates. The parties to the matter in dispute are [description of parties]. Note If the application relates to collective bargaining negotiations, identify the other persons or organisations with whom you propose to reach an agreement. The following steps of the dispute settling process have been taken: [List the steps taken and enclose a copy of the dispute settling process]. The type(s) of assistance sought from the AIRC is or are: [Describe the assistance]. Note The types of assistance that the AIRC might provide can be varied by agreement while the dispute resolution process is underway. Dated 20 . [Applicant’s signature]
b. Extract from Workplace Relations Regulations 1996
Schedule 9 Prescribed model dispute resolution procedure (subregulation 30ZI (2)) In relation to any matter that may be in dispute between the parties to this AWA (the matter), the parties: (a) will attempt to resolve the matter at the workplace level, including, but not limited to: (i) the employee and his or her supervisor meeting and conferring on the matter; and (ii) if the matter is not resolved at such a meeting, the parties arranging further discussions involving more senior levels of management (as appropriate); and (b) acknowledge the right of either party to appoint, in writing, another person to act on behalf of the party in relation to resolving the matter at the workplace level; and (c) agree to allow either party to refer the matter to mediation if the matter cannot be resolved at the workplace level; and (d) agree that if either party refers the matter to mediation, both parties will participate in the mediation process in good faith; and (e) acknowledge the right of either party to appoint, in writing, another person to act on behalf of the party in relation to the mediation process; and (f) agree that during the time when the parties attempt to resolve the matter: (i) the parties continue to work in accordance with their contract of employment unless the employee has a reasonable concern about an imminent risk to his or her health or safety; and (ii) subject to relevant provisions of any State or Territory occupational health and safety law, even if the employee has a reasonable concern about an imminent risk to his or her health or safety, the employee must not unreasonably fail to comply with a direction by his or her employer to perform other available work, whether at the same workplace or another workplace, that is safe and appropriate for the employee to perform; and (iii) the parties must cooperate to ensure that the dispute resolution procedures are carried out as quickly as is reasonably possible; and (g) agree not to commence an action: (i) to obtain a penalty under section 170VV of the Act; or (ii) to obtain damages for breach of the AWA; or (iii) to enforce a provision of the AWA or Part VID of the Act (other than an action to enforce section 170VU of the Act); unless: (iv) the party initiating the action has genuinely attempted to resolve the dispute at the workplace level; and (v) either: (A) a period of 7 days has expired from the date when the party initiating the action gave notice that mediation is not requested; or (B) mediation was requested by either party and that mediation has been completed.
c. Extract from Clerical Employees Award 2000 – State (Qld) 3.1 Grievance and dispute settling procedure The matters to be dealt with in this procedure shall include all grievances or disputes between an employee and an employer in respect to any industrial matter and all other matters that the parties agree on and are specified herein. Such procedures shall apply to a single employee or to any number of employees. 3.1.1 In the event of an employee having a grievance or dispute the employee shall in the first instance attempt to resolve the matter with the immediate supervisor, who shall respond to such request as soon as reasonably practicable under the circumstances. Where the grievance or dispute concerns alleged actions of the immediate supervisor the employee/s may bypass this level in the procedure. 3.1.2 If the grievance or dispute is not resolved under clause 3.1.1, the employee or the employee's representative may refer the matter to the next higher level of management for discussion. Such discussion should, if possible, take place within 24 hours after the request by the employee or the employee's representative. 3.1.3 If the grievance involves allegations of unlawful discrimination by a supervisor the employee may commence the grievance resolution process by reporting the allegations to the next level of management beyond that of the supervisor concerned. If there is no level of management beyond that involved in the allegation the employee may proceed directly to the process outlined at clause 3.1.5. 3.1.4 If the grievance or dispute is still unresolved after discussions mentioned in clause 3.1.2, the matter shall, in the case of a member of a Union, be reported to the relevant officer of that Union and the senior management of the employer or the employer's nominated industrial representative. An employee who is not a member of a Union may report the grievance or dispute to senior management or the nominated industrial representative. This should occur as soon as it is evident that discussions under clause 3.1.2 will not result in resolution of the dispute. 3.1.5 If, after discussion between the parties, or their nominees mentioned in clause 3.1.4, the dispute remains unresolved after the parties have genuinely attempted to achieve a settlement thereof, then notification of the existence of the dispute is to be given to the Commission in accordance with the provisions of the Act. 3.1.6 Whilst all of the above procedure is being followed, normal work shall continue except in the case of a genuine safety issue. 3.1.7 The status quo existing before the emergence of the grievance or dispute is to continue whilst the above procedure is being followed. 3.1.8 All parties to the dispute shall give due consideration to matters raised or any suggestion or recommendation made by the Commission with a view to the prompt settlement of the dispute. 3.1.9 Any Order or Decision of the Commission (subject to the parties' right of appeal under the Act) will be final and binding on all parties to the dispute. 3.1.10 Discussions at any stage of the procedure shall not be unreasonably delayed by any party, subject to acceptance that some matters may be of such complexity or importance that it may take a reasonable period of time for the appropriate response to be made. If genuine discussions are unreasonably delayed or hindered, it shall be open to any party to give notification of the dispute in accordance with the provisions of the Act. |
d. Extract from Federal Transport Workers Award 1998
TRANSPORT WORKERS AWARD 1998
10. SETTLEMENT OF DISPUTES
10.1 In the event of a dispute arising in the workplace the procedure to be followed to resolve the matter will be as follows:
10.1.1 the employee and the supervisor meeting and conferring on the matter; and
10.1.2 if the matter is not resolved at such a meeting, the parties shall arrange for further discussions between the employee and his or her nominated representative, if any, and more senior levels of management.
10.2 If the matter is still not resolved a discussion shall be held between representatives of the employer and the union or other employee representative. The union representative may include a union delegate.
10.3 If the matter cannot be resolved it may be referred to the Commission.
10.4. Redundancy disputes
[10.4 inserted by PR950064 ppc 09Aug04]
10.4.1 Paragraphs 10.4.2 and 10.4.3 impose additional obligations on an employer where an employer contemplates termination of employment due to redundancy and a dispute arises (a redundancy dispute). These additional obligations do not apply to employers who employ fewer than 15 employees.
10.4.2 Where a redundancy dispute arises, and if it has not already done so, an employer must provide affected employees and the relevant union or unions (if requested by any affected employee) in good time, with relevant information including:
10.4.3 Where a redundancy dispute arises and discussions occur in accordance with this clause the employer will, as early as possible, consult on measures taken to avert or to minimise any proposed redundancies and measures to mitigate the adverse affects of any proposed redundancies on the employees concerned.
[10.4 renumbered as 10.5 by PR950064 ppc 09Aug04]
10.5 While the parties attempt to resolve the matter work will continue as directed by the employer unless an employee has a reasonable concern about an imminent risk to his or her health and safety.
[10.5 inserted by PR945802 ppc 16Apr04; renumbered as 10.6 by PR950064 ppc 09Aug04]
10.6 A duly elected and/or appointed union delegate and/or employee representative referred to in this clause will be entitled to and be granted leave with pay each calendar year, non-cumulative, to a maximum of 5 days per employee per year, to attend courses which are specifically directed towards effective resolution of disputes regarding industrial matters under this award and/or industrial issues which arise at the workplace. Union delegates and/or employee representatives will only be entitled to leave in accordance with this clause for bona fide courses.
[10.6 inserted by PR945802 ppc 16Apr04; renumbered as 10.7 by PR950064 ppc 09Aug04]
10.7 For the purposes of this clause, a ‘bona fide course’ means a Dispute Resolution Training Leave Course conducted under the auspices of a registered training organisation whose scope of registration includes industrial relations training. Nothing in this clause shall prevent the union delegate and/or employee representative and the employer from reaching agreement that such training can be provided by the union or other accredited training provider/s.
[10.7 inserted by PR945802 ppc 16Apr04; renumbered as 10.8 by PR950064 ppc 09Aug04]
10.8 An employee representative and/or union delegate or the union shall give the employer 6 weeks notice of his/her intention to attend such courses and the leave to be taken, or such shorter period of notice as the employer may agree to accept.
[10.8 inserted by PR945802 ppc 16Apr04; renumbered as 10.9 by PR950064 ppc 09Aug04]
10.9 The notice to the employer shall include details of the type, content and duration of the course to be attended. Upon request, the course curriculum will be provided to the employer.
[10.9 inserted by PR945802 ppc 16Apr04; renumbered as 10.10 by PR950064 ppc 09Aug04]
10.10 Leave shall be available according to the following scale for each yard, depot or garage of an employer:
-
| No. of weekly employees covered by this award | Max. no. of delegates/representatives eligible to attend per year | Max. no. of days permitted per year | | 5 – 15 | 1 | 5 | | 16 – 30 | 2 | 10 | | 31 – 50 | 3 | 15 | | 51 – 100 | 4 | 20 | | 101 and over | 5 | 25 |
[10.10 inserted by PR945802 ppc 16Apr04; renumbered as 10.11 by PR950064 ppc 09Aug04]
10.11 The granting of leave pursuant to this clause shall be subject to the employer being able to make adequate staffing arrangements among current employees during the period of such leave.
[10.11 inserted by PR945802 ppc 16Apr04; renumbered as 10.12 by PR950064 ppc 09Aug04]
10.12 Leave rights granted in accordance with this clause will not result in an additional payment or alternative time off to the extent that the course attended coincides with an employee's day off in the nineteen day month work cycle or with any other concessional leave.
[10.12 inserted by PR945802 ppc 16Apr04; renumbered as 10.13 by PR950064 ppc 09Aug04]
10.13 An employer shall not be liable for any additional expenses associated with an employee's attendance at a course other than the payment of ordinary time earnings for such absence. For the purposes of this clause ordinary time earnings shall be defined as the relevant award classification rate including supplementary payments and shift work loadings, where relevant, plus over award payment where applicable.
[10.13 inserted by PR945802 ppc 16Apr04; renumbered as 10.14 by PR950064 ppc 09Aug04]
10.14 An employee shall not be eligible to attend such courses until six months continuous service has been served with the employer.
[10.14 inserted by PR945802 ppc 16Apr04; renumbered as 10.15 by PR950064 ppc 09Aug04]
10.15 Leave of absence on training leave shall be counted as service.
[10.15 inserted by PR945802 ppc 16Apr04; renumbered as 10.16 by PR950064 ppc 09Aug04]
10.16 The employee shall provide the employer with proof of attendance.
[10.16 inserted by PR945802 ppc 16Apr04; renumbered as 10.17 by PR950064 ppc 09Aug04]
10.17 Any dispute in respect of leave provided by this clause shall be resolved in accordance with this clause. The employer must reject the written application for leave within 14 days of its receipt or the leave shall be granted. Where an application is rejected and the Union wishes to have the matter dealt with in accordance with the settlement of dispute procedure, the parties must be notified within fourteen days of the rejection or the application for leave will lapse.
e. Extract from Coles Myer Logistics Forest Lake – Certified Agreement 2005
COLES MYER LOGISTICS FOREST LAKE - CERTIFIED AGREEMENT 2005 8. DISPUTE SETTLEMENT PROCEDURES 8.1. It is agreed that every endeavour will be made to amicably settle any grievance which may arise in the Distribution Centre by direct negotiation and consultation between the parties to this Agreement. It is recognised that from time to time, a need may arise where an employee may seek a support person to accompany them. To facilitate the settlement of any such grievance the following channel of communication shall apply: 8.1.1. Should any matter arise that causes the employee concern, that employee shall raise the matter with the responsible line manager. 8.1.2. If the matter is not settled to the satisfaction of the employee, within 24 hours of first raising the matter, the employee shall draw it to the attention of the elected delegate (where relevant). The matter shall then be discussed between the employee, the line manager and the elected delegate (where relevant). 8.1.3. If not satisfactorily settled, within Four (4) calendar days, the delegate (where relevant) shall approach the next level of management for further discussion. The matter shall then be discussed between the employee, the employee’s line manager, the elected delegate (where relevant) and the next level of management. 8.1.4. If the matter is still not resolved, within Four (4) calendar days, the elected delegate (where relevant) shall advise the appropriate union official as nominated by the State Secretary of the Union. Discussions shall then be held between the nominated representative of the Company and the appropriate union official. The elected delegate, the employee and appropriate line manager may be involved at this level. 8.1.5. If the matter is not settled it may be submitted to the Industrial Relations Commission which will conciliate with the parties to resolve the issue, or failing settlement by conciliation, shall arbitrate to resolve the issue., 8.2. At all times, it is agreed that while the dispute settlement procedure is in process, the status quo shall prevail and work will proceed normally.
f. Extract from Queensland Industrial Relations Commission template certified agreement
JOE BLOGGS PTY LTD – CERTIFIED AGREEMENT 2004
2.3 Grievance procedures
Effective communication between staff and management is a prerequisite to good industrial relations and the following procedure is set down in order that any grievances may be resolved quickly to maintain sound working relationships.
(a) Any employee or employees with a genuine grievance or complaint regarding any aspect of the employment of such employee/s shall promptly raise the matter/s with the immediate supervisor who will endeavour to resolve the matter as soon as possible.
(b) If the matter is not resolved at this level, the employee/s shall discuss the matter/s at issue with the next higher level of management and the employee/s may elect to notify the duly authorised Union official.
(c) Should the grievance still be unresolved, the matter should then be referred to the General Manager and a duly authorised Union official who shall attempt to facilitate a resolution.
(d) If after the above steps the matter remains unresolved, the dispute shall be referred to the Industrial Relations Commission.
(e) While the above procedure is being followed, the status quo shall prevail and every endeavour shall be applied to ensure that work continues normally until settlement is reached.
(f) All parties shall give due consideration to matters raised or any suggestion or recommendation made by the Queensland Industrial Relations Commission with a view to prompt settlement of the matter.
(g) The above procedures do not restrict Joe Bloggs Pty Ltd or an authorised representative or duly authorised official of the Union from making representations to each other.
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