Western Australian Industrial Relations Commission

THE EMPLOYMENT DISPUTE RESOLUTION ACT

The Employment Dispute Resolution Act 2008 is 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.

Background

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 the national industrial relations system.

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 continue 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.

Commonwealth Coverage is No Bar

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.

Using the Experience

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.

Smaller Business

The Act will be particularly appealing to small businesses which do not 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.

Any Dispute May be Brought

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.

It's All Voluntary but Agreements Can Be Enforced

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.

The Methods of Bringing the Dispute to the Industrial Commission

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.

Dispute Resolution under Commonwealth agreements

Parties to a Commonwealth enterprise agreement must include in the agreement a dispute resolution procedure that allows the WA Industrial Relations Commission to deal with disputes.

 

Further information and support is available from the Registry officers of the

Western Australian Industrial Relations Commission on ph: (08) 9420 4444

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Western Australian Industrial Relations Commission
17th Floor
111 St Georges Terrace
PERTH WA 6000

Phone : (08) 9420 4444
Facsimile : (08) 9420 4500
Free Call : 1800 624 263
Free Fax : 1800 804 987

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