Dispute Resolution in the
Workplace
Presentation to the ACTU Industrial Officers Conference
July 2006
Anna Booth
Clive Thompson
CoSolve
www.cosolve.com.au
Presentation points
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Principles of fair & effective dispute resolution
Dispute resolution under Work Choices
A critique of Work Choices and effective ADR
in practice
Open discussion
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Principles of fair and effective dispute
resolution
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Legitimacy – process: the DR system must be the
product of consent (negotiated agreement) between
the key parties whose interests are at stake:
employees and their representatives and employers
and their representatives
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Legitimacy – substance: the features of the DR
system must be objectively fair (they must not infringe
human rights, international labour standards or fair
labour practices); they must be consistent with
effective and efficient business management
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Scope: the DR system must be able to cover the full
range of issues that give rise to conflict in the
workplace
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Principles of fair and effective dispute
resolution
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Powers: the DR system must be able to bring the full
portfolio of ADR processes to bear, from mediation to
arbitration and everything else in between
Dispute resolvers’ credentials: The dispute
resolvers must be independent, expert, credible and
selected by agreement or a legitimate process
Simplicity: The DR process must be straightforward
Speed: the DR process must be readily accessible
and able to effect a reasonably quick resolution
Cost: the system must be affordable to the parties on
a cost/benefit basis
Integration: the AIRC and private dispute resolvers
must ideally complement one another but in any event
not undermine one another
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Distinguishing disputes of right & disputes of
interest
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Rights disputes
 Concern legal entitlements, e.g. disputes over the
interpretation & application of laws and
agreements
 Must ultimately, failing agreement, be capable of
resolution by speedy adjudication or arbitration –
med-arb a good process
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Interest disputes:
 Disputes over economic issues – the creation of
new rights; these disputes typically arise in
negotiations or collective bargaining
 Normally resolution by mediation or the exercise of
economic power, though the parties may agree to
an arbitrated outcome
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Different procedures for rights and interest
disputes
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When the AIRC had a comprehensive jurisdiction to supervise workplace
relations, armed with a full suite of conciliation and arbitration powers,
the rights-interests distinction was not important. With that jurisdiction
and those powers now stripped back, the distinction becomes crucial.
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Rights disputes:
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Parties must give the Commission or private dispute resolvers arbitration
powers – entitlements are at stake, not favours. If no agreement is reached
on arbitration powers, rather just sue in a court of competent jurisdiction if
this is possible and feasible. A well-crafted, expedited med-arb procedure
(and not the effete stuff of the ‘model’ Work Choices) is indicated. See
www.cosolve.com.au soon for examples
Interest disputes:
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Here space for the right to strike as the ultimate guarantor of good faith
bargaining must be preserved (even given the severe constraints that Work
Choices imposes on the right, measured against international labour
standards. Hence a well-crafted negotiation procedure supported by a
dispute procedure grounded in independent mediation (and not arbitration) is
indicated. Arbitration may still be appropriate ad hoc to break particular
impasses. See www.cosolve.com.au soon for examples
www.cosolve.com.au
Dispute resolution under Work Choices
The “Model” DR process (s 694 onwards)
Applies to, amongst others, disputes over:
 entitlements under the Australian Fair Pay and Conditions
Standard (s 175)
 terms of a workplace agreement, where the agreement itself
includes the model dispute resolution process or defaults there (s
353)
 the application of a workplace determination (s 504)
 the application of awards (s 514)
 meal breaks (s 609)
 public holidays (s 614)
 parental leave (s 691)
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The “Model” DR process
Disputes of right: entitlements, dispute arising out of the
interpretation and application of workplace agreements
 Invoking the process
 Selecting a dispute resolver
 The powers of the dispute resolver:
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AIRC: no power to compel a person to do anything or to
make an award (even if the parties would agree to this)
Private DRs: (med-arb, arbitration, status quo orders, etc)
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Interest disputes
Disputes arising out of the bargaining process
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Commission has no power to compel or to arbitrate,
even if the parties would have agreed to this
Private DRs: can do anything the parties agree to
(med-arb, arbitration, status quo orders, etc)
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Dispute referred to Commission under
Workplace Agreements
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Commission can do anything except make orders
However, Commission only has dispute resolution
jurisdiction in respect of matters that can be
incorporated in workplace agreements
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The Commission’s model procedures
For disputes arising out of workplace agreements:
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Facilitative models – mediation and conciliation
Informal determination
Formal determination
Arbitration
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The Commission’s dispute procedures:
example clauses
For disputes arising out of workplace agreements:
1.
2.
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 for resolution by
mediation or conciliation.
If a dispute in relation to a matter arising under this 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 for resolution by
mediation and/or conciliation and, if the dispute remains
unresolved, by 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.
www.cosolve.com.au
The Commission’s dispute procedures:
example clauses
For disputes arising out of workplace agreements:
1.
2.
3.
On a dispute being notified to it, the Australian Industrial
Relations Commission may exercise such powers and functions
as the parties agree are appropriate at the time.
Any dispute referred to the Australian Industrial Relations
Commission under the 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.
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.
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ADR under Work Choices: the policy
implications and policy choices
Option hierarchy:
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5.
Opt out of Work Choices altogether – use a genuine and
effective ADR process captured in a common law agreement
(Why? Because Work Choices does not regulate conflict over
several interests of vital and legitimate concern to employees
and unions [unfair dismissal being chief amongst these]. It
simply purports to prohibit recognition of these interests, and
then to prohibit conflict on the subject – a foolish and untenable
policy. To accept the Work Choices framework on conflict
resolution is to accept the illegitimate and untenable.)
Use a mixture of common law agreement ADR and statutory DR
(in short, make good the deficiencies of Work Choices through
supplementary agreements reflecting sound DR principles)
Avoid the default “Model” – negotiate an agreed DR process in a
workplace agreement reflecting sound DR principles (s 353)
Rework the “Model” as much as possible
Ignore ADR under the statute – take rights disputes to courts of
competent jurisdiction and manage interest disputes ad hoc
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Challenges in opting out
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Need the consent of the employer. Why would any employer agree if its
competitors are using Work Choices to grind workers? The proposition is
that, especially in a period of skilled labour shortage, an employer who
offers a fair total employment package, including job security backed by
equitable processes and who endorses genuine workplace representation
on all matters of mutual interest, will be seen in the labour market an
employer of choice, with accruing competitive advantages.
This requires the development of a sophisticated employer-employee-union
relationship, grounded in mutual respect and trust
(Lawfully) coercing an employer into a substantively satisfactory dispute
system offends against fundamental design principles: effective systems are
legitimate ones; legitimate systems are the product of negotiated consensus
Investment must be made in the design of comprehensive, fair, effective and
enforceable dispute systems. This work has scarcely begun in Australia
Need to find independent, credible, accessible and affordable dispute
resolvers (the AIRC is likely the best for areas of conflict falling under Work
Choices, but it has no jurisdiction any more over the full range of workplace
interests and concerns)
Need to skill representatives in the use of genuine and effective ADR
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A truly alternative dispute resolution system
turns on …
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an emphasis on building and maintaining strong relationships
between the parties – genuine & effective information-sharing,
consultation and mutual gains bargaining serve as the best
antidote to disputes (in short, work at effective dispute prevention)
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workplace agreements that deal comprehensively with all key
matters of mutual interest to employers and employees and their
representatives (wages and working conditions, workplace
change, training & development, grievances, unfair dismissal,
union access, bargaining fees, etc)
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providing for rights and duties, structures and processes in a
comprehensive set of agreements extending beyond the shackles
of Work Choices
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dispute resolution processes that are the product of negotiated
agreements between true stakeholders (whoever they are)
www.cosolve.com.au
A truly alternative dispute resolution system
turns on …
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comprehensive dispute resolution processes, where  all unresolved disputes arising out of the interpretation and
application of the agreement are channelled into expedited
med-arb
 all unresolved interest disputes are channelled into
expedited mediation, with the right to strike preserved and
arbitration as an ad hoc option
 formalities are minimised, yet there is sufficient process
detail
 the dispute resolvers shape up: independent, expert,
credible (the AIRC qualifies, but its jurisdiction is now
truncated)
care being taken in the drafting of agreements to ensure their
efficacy and enforceability – in a competitive world, agreements
must support fair outcomes and successful business operations
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