The Employment Dispute Resolution Act 2008 is new legislation that enables employers and employees to seek the services of the Western Australian Industrial Relations Commission to prevent or resolve workplace disputes.
The primary objective of the Act is to create a dispute resolution framework that is informal, easily accessible, expedient and efficient with minimal costs. It establishes a dispute resolution system that is outside the traditional role.
This legislation marks a watershed in Western Australian industrial relations by creating an alternate stream to the 100 year old compulsory conciliation and arbitration system. This new Act allows the Western Australian Industrial Relations Commission to offer a service that is voluntary, involves minimal expense, is easy to initiate, and is available to employers, unions and employees who want to use it. It is even available to those covered by Commonwealth agreements.
This new mediation stream, as a preferred method of employment dispute settlement, has been evolving for some years and follows on from the changes in industrial relations over the last 10 years that have seen the diminution of a centralised system of compulsory conciliation and arbitration to one where disputes are resolved at the enterprise level.
The “traditional” conciliation and arbitration roles continues for those who want to use it, but this new stream provides a dispute solving option that is less formal and largely determined by the employer and employees and does not enable the Commission to determine matters, unless it is requested to do so.
Notwithstanding the “Workchoices”1 changes to Commonwealth legislation, it is intended that the Western Australian Industrial Relations Commission can be requested to mediate employment disputes where the employer and employees are in the Commonwealth jurisdiction. This means that even those employers (and their employees) that would otherwise be in the Commonwealth jurisdiction, may ask the Western Australian Industrial Relations Commission to mediate in a dispute.
When it does so, the Commission may only perform the functions which the employer and employees agree it can perform, whether it is simply mediation, or whether it goes further into conciliation or arbitration, and even with a right to appeal.
The intention of the Act is to make use of the Industrial Relations Commission’s extensive experience in dispute resolution by having it apply in a voluntary mediation context. The Commission has been working towards this change for over 18 months and all Commission members have undertaken formal mediation training. In October 2007 the Commission hosted tribunal representatives from all States, and from the Commonwealth in several days of workshopping, delivered by experienced mediators from overseas.
The Commission invited experienced mediators from the UK (Advisory, Conciliation and Arbitration Service), USA (Federal Mediation and Conciliation Service) and Ireland (Labour Relations Commission). These organisations have been involved in mediation of workplace issues for many years.
It is anticipated that the Act will be particularly appealing to small businesses which don’t have the range of in-house “human resource management”; staff and are wary of the complexity of the formal industrial relations dispute settling processes. It will especially appeal to employers, employees and organisations who want to have more control over how their disputes should be resolved.
Basically the Act provides an informal avenue for employers or employees to request the Western Australian Industrial Relations Commission to mediate an employment dispute. Mediation will be informal, convenient and non-legalistic, and the expertise of the Industrial Relations Commission will be provided at no cost.
Matters that employers or employees may bring to the Industrial Relations Commission are not confined to the traditional meaning of “industrial dispute”. Employers, unions and employees may use the mediation service for any question, dispute or difficulty that arises out of, or in the course of, employment in their workplace.
In conducting mediation, the Industrial Relations Commission will not be able to compel a person to do anything, arbitrate or otherwise determine the rights or obligations of a party, unless everyone involved agrees. The intention of the legislation is to encourage employers and employees to establish their own, agreed outcomes to resolve disputes.
When agreement is reached, the Industrial Relations Commission will be able to register the agreed outcome as a mediation settlement agreement. This registered agreement is able to be enforced in the Industrial Magistrates Court.
One of the options open to employers and employees is to have a “referral agreement” clause in their enterprise agreement which allows any person, by consent, to refer a matter to the Industrial Relations Commission. In doing so, it is the employers and employees themselves who determine the parameters for the resolution of the dispute by the Commission. The Commission has no authority beyond what they permit. It is this which marks this system as a significant departure from the traditional compulsory arbitration by industrial tribunals.
A referral agreement can relate to a specific dispute and its resolution, or it can relate to disputes between the employers and employees of a particular type as specified in the agreement. Parties to the referral agreement will set out what role the Commission will have. That is, they will decide whether the Commission is able to mediate, conciliate or arbitrate disputes.
The Commission will be able to make binding determinations about the scope or meaning of the referral agreement in order to curtail jurisdictional arguments which can prolong the dispute resolution.
If the employer and employees agree to have their agreement registered in the Commission, it will be able to vary the operation of an existing State award, order or industrial agreement. Beyond this however, the Commission can only make binding orders or decisions when the parties, via their referral agreement, allow it to do so.
There are two avenues for employers and employees in the Commonwealth industrial relations system to seek the assistance of the WA Industrial Relations Commission;
- Parties to a federal workplace agreement must include in the workplace agreement a dispute resolution procedure that allows the WA Industrial Relations Commission to deal with disputes over the application of the agreement.
- The Commonwealth Workplace Relations Act 1996 2 has a model dispute resolution process which applies in a variety of circumstances, including situations where there are disputes over the application of an award, or a workplace agreement which do not include the required dispute resolution procedure. The model dispute resolution procedure allows the parties to agree on a dispute resolution provider; and where they nominate the WA Industrial Relations Commission as that provider, they can bring the dispute to the WA Industrial Relations Commission.
1 Workplace Relations Act 1996, as amended by the Workplace Relations Amendment Act 2005 which came into effect on 27 March 2006. A subsequent challenge by all States to the validity of the legislation was rejected by the High Court on 14 November 2006 ([2006] HCA 52)
2 This Act still applies. The Commonwealth Government has introduced a new Bill into the Commonwealth Parliament – the Fair Work Australia Bill – but that will not replace the Workplace Relations Act 1996 until later in 2010, assuming it is eventually passed by the Commonwealth Parliament and becomes an Act.