Western Australian Industrial Relations Commission

Agreement in writing between employer/s and employee/s to refer a particular employment dispute (or employment disputes of a particular class) to the Commission for mediation.

 

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What is a written referral agreement?

It is simply an agreement in writing between employer/s and employee/s to refer a particular employment dispute (or employment disputes of a particular class) to the Commission for mediation.

It can be made when there is no dispute, but something that is put in place in the event of a dispute.

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What should be in a referral agreement?

A referral agreement should describe the issue or types of issues that may be referred to the Commission, and describe what that Commission may do. For example, the Commission may:

· Mediate, which may include:

    1. a meeting with the Commissioner and the employer/s and employee/s to discuss the issues

    2. the Commissioner assisting to negotiate an outcome

    3. the employer/s and employee/s asking a Commissioner to consider and appraise the dispute and provide advice on the facts of the dispute, the law and in some cases, the possible or desirable outcomes and how these may be achieved.

· Conciliate – similar to mediation but with the Commissioner taking a more active role;

· Arbitrate – make an order or declaration or other relief; or

· Decide any other issue or question arising in an employment agreement.

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Who can make a referral agreement?

An employer, or group of employers and an employee, or group of employees; an organisation of employees or employers.

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When can referral agreements be made?

A referral agreement can be made at any time. It can be included in an enterprise bargaining agreement to cover future employment disputes generally or particular types of employment disputes, or be merely a one-off agreement to cover one particular dispute or a series of particular employment disputes.

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How long does a referral agreement last?

A referral agreement comes into force on the day it is made or on a specified date agreed to by the parties.

It remains in force until the expiry date in the referral agreement or, if there is no expiry date, after three years. Parties can agree in writing to withdraw a referral agreement at any time prior to its expiry date.

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When an employment dispute arises how do you refer it to the Commission?

Any employer and employees, or a member of a group of employers or employees, who are party to a referral agreement may refer an employment dispute to the Commission by downloading and completing a request  Form M4 and either lodging it in person or completing it online.

There is no fee for filing the form. A form can also be requested by telephone, email or fax.

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Can I or a group be represented?

It is intended that individuals appear in person. If the employer is a company it may be represented by a director, secretary or other company officer. Alternatively, the terms of the referral agreement may determine whether you can be represented. If it does not provide for representation, you may need the agreement of the others involved that you may be represented.

A group of employers or employees can be represented by an individual if the referral agreement says so. If representation is desirable the referral agreement should specify the circumstances in which an individual is entitled to act on the behalf of others.

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What happens if an agreement is reached to settle the employment dispute?

The parties can record their agreement, and the Commissioner may make an order in terms of the agreement if that is agreed.

The order may vary the operation of an existing State award, order or industrial agreement. Alternatively, where the Commissioner dealing with the matter is of the opinion that the nature or subject matter of the agreement does not require an order in terms of the agreement, the Commissioner may issue a memorandum of the terms of the agreement.

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Can the Commissioner refuse to act, suspend or discontinue a referral?

Yes, if the Commissioner dealing with the matter is of the opinion that the employment dispute should be resolved in another manner;

or if proceedings that relate to the referral have been commenced under another law of the State or Commonwealth;

or there is some other reasonable cause to justify a decision not to proceed, suspend or discontinue the referral.

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Can a person withdraw from a referral which has been made to the Commission?

Yes, an employer or employee can withdraw at any time.

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Is what is said in mediation private?

Yes, mediation must be held in private and the Commissioner may give directions on who may be present during the mediation.

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If the parties remain in dispute, can the Commission make a binding decision and can that decision be enforced?

Only if the written referral agreement provides for the Commission to make decisions, orders, give directions or determinations that are binding on the parties.

These can be enforced under the Industrial Relations Act 1979.

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Can a person appeal a decision of the Commission?

Yes, if the referral agreement provides that a person may appeal. If so the appeal proceeds to the Full Bench of the Commission as if the decision was under the Industrial Relations Act 1979.

See s 49 of the Industrial Relations Act 1979.

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Advantages of written referral agreements.

The advantages of making a written agreement to refer matters for mediation are that:

· The employer/s and employee/s set the rules of dispute resolution - that is, they determine the type and functions of dispute resolution by the Commission.

· The employer/s and employee/s have easy access to a neutral third party (the Commissioner) who can assist them to resolve their dispute.

· The Commissioner cannot exercise any functions unless those functions are contained in their referral agreement.

· The process is simple and designed to enable employment disputes to be resolved very quickly.

· The process can be as informal or formal as the employer/s and employee/s require.

· If the employer/s and employee/s choose to have non-binding dispute resolution, the parties can consider what the Commissioner suggests for resolving the dispute and accept or reject it.

· If the employer/s and employee/s choose a binding process, it means that they agree in advance that they will accept the solution. The dispute then ends, unless they also agree in advance that the employer/s and employee/s may exercise a right of appeal.

· A person who makes the referral can withdraw it at any time.

· A referral agreement enables employers and employees to establish processes to resolve employment disputes in a calm and neutral environment.

· A referral agreement can provide an effective dispute resolution process, which enables the parties to repair relationships and build trust.

· A referral settlement agreement may vary the operation of an existing award, order or industrial agreement.

· Referral proceedings must be held in private and the Commissioner may give directions on who may be present. No evidence or matters contained in documents lodged with the Commission may be published or disclosed unless an order is made by the Commissioner. These directions may be enforced as a direction or order made under the Industrial Relations Act 1979.

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Can there be more than one Commissioner in the mediation?

Usually a single Commissioner will mediate, except if the referral agreement requires or provides for the employer/s and employee/s to request that mediation be done by more than one Commissioner, and if the Chief Commissioner is of the opinion that it is practical and appropriate.

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Are there any examples of dispute resolution functions a Commissioner may perform?

Yes, examples are set out here.

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Are there any examples of written referral agreement clauses?

Yes, these are also set out here.

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Western Australian Industrial Relations Commission
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