DISPUTE RESOLUTION AND THE COMMISSION Senior Deputy President Acton acton.sdpairc.gov.au July 2006

1
DISPUTE RESOLUTION AND THECOMMISSION
Senior Deputy President Acton
acton.sdp_at_airc.gov.au

July 2006
2
Commission Role

• The main functions of the AIRC after
• Work Choices are about
• dispute resolution
• industrial action
• termination of employment claims
• rationalising and simplifying awards

3
What to expect from the AIRC

• Independence and impartiality
• Inexpensive, timely and flexible
• Industry-specific knowledge and expertise
• Experience
• Accessibility and focus on the parties
  needs
• National coverage

4
Dispute Resolution
5
Dispute Resolution in the AIRC

• Disputes under the model dispute resolution
  process
• Collective bargaining disputes
• Disputes under workplace agreements
• Disputes under old certified agreements
• Industrial disputes with transitional employers

6
Model Dispute Resolution Process
Dispute starts
Talks at workplace
Successful Dispute Resolved
Unsuccessful
Private ADR
ADR in AIRC
No agreement on ADR
14 days
Notify Registrar
ADR in AIRC
7
Model Process types of disputes

• Examples
• entitlements under the Australian Fair Pay and
  Conditions Standard, other than wages and related
  matters
• the terms of a workplace agreement (where the
  model process is included in the agreement or
  taken to be included)
• the application of a workplace determination
• the application of awards
• meal breaks, public holidays or parental leave

8
Model Dispute Resolution Process

• What forms of Alternative Dispute Resolution
  does the Model Dispute Resolution Process
  involve?
• conferencing
• mediation
• assisted negotiation
• neutral evaluation
• case appraisal
• conciliation
• arbitration or other determination
• a procedure or service specified in the
  regulations (s.698)

9
Model Process in the AIRCKey Points

• AIRC to act quickly, avoid technicalities and in
  accordance with any agreement between the parties
• AIRC cannot compel a person to do anything, make
  an award or order or appoint a board of reference
• May arbitrate or make recommendations by consent
• May determine the rights or obligations of a
  party to the dispute by consent
• Proceedings private
• Material confidential

10
Collective Bargaining Disputes

• Disputes arising in the course of bargaining for
  a proposed collective agreement
• AIRC involvement requires consent of all parties
• Application in prescribed form

11
Collective Bargaining Disputes

• AIRC to act quickly, avoid technicalities and in
  accordance with any agreement between the parties
• AIRC cannot compel a person to do anything, make
  an award or order or appoint a board of reference
  AIRC
• May not arbitrate but may make recommendations by
  consent
• Proceedings private
• Material confidential

12
Disputes under Workplace Agreements

• The dispute must be one able to be resolved
  through the AIRC under the agreement
• The agreement specifically refers to the AIRC or
• The agreement does not exclude the AIRC
• The AIRC has the functions and powers given to it
  by the workplace agreement or otherwise agreed by
  the parties but does not have the power to make
  orders

13
Disputes under Workplace Agreements

• AIRC must act quickly, avoiding technicalities
  and in accordance with any process agreed by the
  parties
• Proceedings are private
• Information is confidential

14
Disputes under old Certified Agreements

• Pre-reform certified agreements continue
• Section 170LW continues to operate
• Can Commission exercise old powers?
  (Schedule 7, items 2(1)(e) and (r))

15
Disputes Transitional Employers

• Organisations bound by a transitional award with
  at least one member bound by the award or a
  transitional employer may notify a dispute
• Conciliation and arbitration available
• Arbitrate allowable matters only
• Recommendations by consent
• (5
  years)

16
A Dispute Settling Procedure for a Workplace
Agreement
17
Dispute Settling Procedure

• 1. In the event of a dispute in relation to a
  matter arising under this agreement, in the
  first instance the parties will attempt to
  resolve the matter at the workplace by
  discussions between the employee or employees
  concerned and the relevant supervisor and, if
  such discussions do not resolve the dispute, by
  discussions between the employee or employees
  concerned and more senior levels of management as
  appropriate.

18
Dispute Settling Procedure

• 2. A party to the dispute may appoint another
  person, organisation or association to accompany
  or represent them in relation to the dispute.

19
Dispute Settling Procedure

• 3. If a dispute in relation to a matter arising
  under the agreement is unable to be resolved at
  the workplace, and all agreed steps for resolving
  it have been taken, the dispute may be referred
  to the Australian Industrial Relations Commission
  (the Commission) for resolution by mediation
  and/or conciliation and, where the matter in
  dispute remains unresolved, arbitration. If
  arbitration is necessary the Commission may
  exercise the procedural powers in relation to
  hearings, witnesses, evidence and submissions
  which are necessary to make the arbitration
  effective.

20
Dispute Settling Procedure

• 4. It is a term of this agreement that while the
  dispute resolution procedure is being conducted
  work shall continue normally unless an employee
  has a reasonable concern about an imminent risk
  to his or her health or safety.

21
Dispute Settling Procedure

• Optional clauses concerning member selection
• 5. Any dispute referred to the Commission under
  this clause should be dealt with by (e.g.) Senior
  Deputy President X, Deputy President Y or
  Commissioner Z or, should that member not be
  available within a reasonable time, a member
  nominated by the President. OR
• 5. Any dispute referred to the Commission under
  this clause should be dealt with by a member
  agreed by the parties at the time or, in default
  of agreement, a member nominated by either the
  head of the relevant panel or the President.

22
Dispute Settling Procedure

• Optional clause concerning appeals
• 6. The decision of the Commission will bind the
  parties, subject to either party exercising a
  right of appeal against the decision to a Full
  Bench.

23
Industrial Action
24
Definition of industrial action

• Unions and employees broad definition
• Exclusion for action by an employee based on a
  reasonable concern about an imminent risk to his
  or her health or safety provided no unreasonable
  failure to perform other work that was safe and
  appropriate for the employee to perform burden
  of proof on the employee
• Employers lock out
• (s.420)

25
Protected action

• Summary
• industrial action during a bargaining period for
  the purpose of supporting or advancing claims
  made in respect of the proposed collective
  agreement or responding to industrial action by
  the opposing negotiating party
• which has been taken in accordance with the Act
  and
• which is not excluded by any provision in the
  Act. (s.435)

26
Bargaining Periods

• An employer, union or employee may initiate a
  bargaining period for the purpose of negotiating
  a collective agreement (s.423(2))
• A bargaining period is initiated by the
  initiating party giving written notice to each
  other negotiating party and to the Commission
  that they intend to try to make a collective
  agreement (s.423(3))

27
Suspension or Termination of Bargaining Periods
grounds for

• Failing to genuinely try to reach agreement
  before or during industrial action
  (s.430(2)(a)-(b))
• Failing to comply with related Commission orders
  or directions (s.430(2)(c))

28
Suspension or Termination of Bargaining Periods
grounds for

• Industrial action is adversely affecting the
  employer or the employees of the employer and
  threatening to endanger the life, personal safety
  or health or welfare of part of the population or
  to cause significant damage to an important part
  of the Australian economy (ss.430(3)-(6) and 498)
• Industrial action in respect of claims for
  employees who are not eligible to be members of
  the organisation (s.430(7))

29
Suspension or Termination of Bargaining Periods
grounds for

• Industrial action relating to or contravening an
  order relating to a demarcation dispute
  (s.430(8))
• Pattern Bargaining (s.431)
• To assist resolving the dispute through a
  cooling off period (s.432)
• Industrial action is adversely affecting the
  employer or the employees of the employer and
  threatening to cause significant harm to a third
  party (s.433)

30
Termination of Bargaining Periods effects
include

• Termination of a bargaining period may lead to
  the Commission making a workplace determination
  (partial equivalent of a pre-reform s.170MX award
  Division 8 of Part 9)
• A workplace determination is like a workplace
  agreement

31
Protected action exclusions

• Industrial action in support of claims for
  prohibited content (s.436 and reg. 8.5 to
  8.7, Chapter 2, Workplace Relations
  Regulations)
• While bargaining period suspended (s.437)
• Involving persons who are not protected for that
  industrial action (s.438)

32
Protected action exclusions

• Industrial action taken in support of pattern
  bargaining (s.439)
• Industrial action taken before nominal expiry
  date of workplace agreement or workplace
  determination (ss.440, 494, 495)
• Industrial action taken without the required
  notice (s.441)

33
Protected action exclusions

• Further, in relation to union/employee action
• failure to comply with orders or directions in
  relation to the making of the proposed agreement
  (s.443)
• action not authorised by secret ballot
  (s.445)
• action is not duly authorised by the union and
  notice of authorisation given to Registrar
  (s.446)

34
Protected action exclusions

• And for employer action
• Employer has failed to genuinely try to reach
  agreement before taking industrial action
  (s.444)

35
Secret ballots generally

• To be protected, industrial action must be
  approved in a secret ballot
• ballot ordered by the Commission.
• 50 of those on the roll must vote
• simple majority in favour (s.478)
• Employee(s) or a union can apply for a secret
  ballot order. Agent may apply on behalf of
  employees - confidentiality
• (e.g. s.486)

36
Orders in relation to industrial action

• Action by federal system employees / employers
  (see ss.5, 6, 7 for definitions)
• 496 (1) If it appears to the Commission that
  industrial action by an employee or employees,
  or by an employer, that is not, or would not
  be, protected action
• (a) is happening or
• (b) is threatened, impending or probable or
  
• (c) is being organised
• the Commission must make an order that the
  industrial action stop, not occur and not be
  organised.

37
Orders in relation to industrial action

• Action by non federal-system employees
• Same requirements with additional requirement
  that action will, or would, be likely to have
  the effect of causing substantial loss or damage
  to the business of a constitutional
  corporation (s.496(2))

38
Relevant cases

• CEPU and Others v Cadbury Schweppes
• Australia Proprietary Limited (PR973290,
• 11 July 2006 per Acton SDP)
• A lack of preparedness by a union to consider
  seriously an offer put by an employer in response
  to claims made by the union in respect of a
  proposed collective agreement, because the
  parties have not reached agreement on claims also
  made by the union in respect of a proposed deed,
  means the union is not genuinely trying to reach
  agreement with the employer as required by
  s.461(1).

39
Relevant cases Cadbury Schweppes

• Under s.461(1), the Commission must not grant an
  application for a protected industrial action
  ballot order unless it is satisfied a union is
  genuinely trying to reach agreement with the
  employer paras. 48-55.

40
Relevant cases

• United Collieries Pty Ltd v CFMEU (2006 FCA
• 904, 14 July 2006 per Gyles J)
• A protected action ballot order, specifying the
  question or questions to be put to relevant
  employees on whether they support proposed
  industrial action, should specify a separate
  question for each kind of industrial action
  proposed. The content of each question must
  include the nature of the proposed industrial
  action.
• Where a specific kind of industrial action is
  described in the question either in the plural
  (e.g. 24-hour stoppages of work), or as a series
  of industrial actions, that kind of industrial
  action is commenced by the occurrence of the
  first instance of it.

41
Relevant cases United Collieries

• A specific kind of industrial action which
  receives the requisite majority of votes but
  which does not commence within a period of 30
  days beginning on the date of the declaration of
  the results of the ballot, or within the period
  extended by the Commission, is not authorised by
  a protected action ballot (paras. 15 and 26).

42
Disclaimer

• The contents of this document are not intended to
  be comprehensive, a substitute for the Workplace
  Relations Act 1996 or used in a particular
  matter. The document is intended to be for
  general information only. The Australian
  Industrial Registry (AIR), the Australian
  Industrial Relations Commission (AIRC) and the
  Commonwealth accept no liability for and give no
  undertakings, guarantees or warranties concerning
  the accuracy, completeness or fitness for purpose
  of the information provided. No reliance should
  be placed on the information provided when making
  a decision affecting your own interest.
• The AIR/AIRC shall in no event be liable for any
  loss of profit or any other commercial damage,
  including but not limited to special, incidental,
  consequential or other damages arising from
  reliance on this document or its contents.