Resolving disputes

The Commission's dispute resolution role under the Fair Work Act encompasses two key areas:

  • Disputes arising from provisions in modern awards, agreements, employment contracts and public determinations, and disputes arising from instruments continued under repealed legislation such as workplace agreements.
  • Disputes arising from general protections and unlawful termination applications.

Disputes arising from awards, agreements and contracts

The majority (97.4 per cent) of disputes referred to the Commission for resolution under awards, agreements and contracts are made under s.739 of the Fair Work Act. Dispute applications fell by 13.6 per cent in 2014–15.

Applications of this type can be made by an individual covered by the award, agreement or contract; by a representative of employees or by an employer. It is important for the parties for these disputes to be resolved quickly and in 2014–15 the Commission achieved a slight decrease in the number of days between the lodgment of a dispute application and its resolution.

Commission Members can assist to resolve these disputes in a number of ways including by conciliation, mediation, expressing an opinion or making a recommendation. Some agreement terms empower the Commission to arbitrate a dispute with a binding determination.

Table 3: Dispute applications – lodgments
Type of application No. of applications
  2011–12 2012–13 2013–14 2014–15
s.526 – Application to deal with a dispute involving stand down 29 19 18 17
s.699 of repealed WR Act – Application to Fair Work Australia to have an alternative dispute resolution process conducted 11 4 13 2
s.709 of repealed WR Act – Application to Fair Work Australia to have a dispute resolution process conducted under a workplace agreement 319 162 69 37
s.739 – Application to deal with a dispute 1643 2124 2366 2078
s.739 – Application to deal with a dispute in relation to flexible working arrangements 27 37 50 41
Total 2029 2346 2516 2175

Case Study

Savage River Mine

An extended conciliation conference convened by the Fair Work Commission on Tasmania's north-west coast was the key to resolving a wage dispute at the Savage River Mine.

The Savage River iron ore mine, operated by Grange Resources, is on Tasmania's rugged west coast. The nearest population centre is the regional city of Burnie, which is a two-hour drive away.

The enterprise agreement covering the mine allows for annual negotiated wage outcomes. However, last year the workforce and company could not agree on a wage increase. Under the terms of the enterprise agreement they requested assistance from the Commission to break the deadlock.

The Commission determined that given most of the parties were based in and around Burnie the best option was not to bring everyone to its premises in Hobart or Melbourne, but to find a location there.

The Commission rented facilities in the local civic centre to ensure that the union's officials and delegates, and the company representatives, could all participate in the discussions on neutral ground.

We really needed that sort of interaction – that sort of understanding – and I think people saw the commitment that was involved. It was really valuable having it here in Burnie, no question.
 
Ben Maynard, Grange Resources.

Had the conciliation occurred in Hobart or Melbourne some participants may not have been able to take part.

'A phone conference or a videoconference would not have been sufficient to take the parties forward on this matter,' Robert Flanagan, from the Australian Workers Union, said. 'It's about that interaction and body language that people pick up on.'

Commissioner Lee, who chaired the conference said: 'It was far better that I was able to step into their space; less time off for all involved and that's really what we are here to do. I think in the neutral environment that was able to be created through the Fair Work Commission chairing these discussions it enabled the exchange of information which enabled both sides to take stock of what the real situation was.'

Like all iron ore producers the Savage River Mine suffers when the iron ore price falls, as it has dramatically in the past year.

We saw it halve in price around the time of that negotiation. It puts the business in a very marginal position.
 
Ben Maynard, Grange Resources.

Over a lengthy conciliation process the company and workforce were involved in joint discussions chaired by Commissioner Lee and in individual sessions with the Commissioner. 'He heard from both sides on what their positions were and what their concerns were,' Ben Maynard said.

'They had a lot of information that they needed to share,' Commissioner Lee said. 'They needed a trust environment – a neutral space – to allow that to occur. I was able to provide assistance by way of a reality check for both sides as to what might be possible.'

Over the course of the day a position was reached that was acceptable to both sides and the matter was resolved. The parties each recognise the important role that Commissioner Lee played in reaching that settlement.

'During that process the Commissioner was able to identify strengths and weaknesses in our position and we guess the same with the company,' Robert Flanagan said.

'I think there was some real value in being able to do that with the Commissioner being face-to-face with the people,' Ben Maynard said. 'It was a really strong conciliation process.'

The workforce accepted the conciliated outcome and work at the mine has proceeded as normal.

Photo showing heavy machinery in operation at the Savage River Mine in Tasmania.

Image: Operations at the Savage River Mine on Tasmania's west coast.

 

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Case Study

House with No Steps

A close, collaborative relationship with its workforce is helping House with No Steps to provide better support for people with disabilities and respond to the challenges of the new National Disability Insurance Scheme.

'If we're not working constructively and openly with our staff to work out how to seize those opportunities and respond to those challenges then we are just not in good shape,' Andrew Richardson, from House with No Steps said.

House with No Steps is a leading not-for-profit organisation providing support services for people with disabilities in Queensland, New South Wales and the ACT. It operates businesses that employ the disabled, training and community engagement programs and a range of supported living facilities.

A bitter industrial dispute over redundancies in its Sydney region became a catalyst in creating a new, closer relationship between management and the workforce.

No-one was particularly happy with the outcome of that dispute – not the organisation and not the union members. That's what prompted the discussion about a 'New Approaches' style of engagement.
 
Natalie Lang, the Australian Services Union.

'New Approaches' is a pilot program run by the Fair Work Commission that helps build cooperative relationships in the workplace, by focusing parties on common interests and common goals. Deputy President Booth suggested to the parties that the program might help them to develop a more collaborative relationship.

The organisation, union and workforce agreed to work together with Members of the Commission to forge a new style of relationship. But the parties entered the process with some degree of apprehension, as it required them to set aside ideas and potential biases.

'You can say leap-of-faith, you can say we buried the hatchet,' Andrew Richardson said. 'However you put it, you've got to take a risk. But in our view it was a risk that was absolutely worth taking.'

The Commission facilitated a number of 'interest-based' discussions and workshops that focused the parties on common ground and objectives.

'Our interests and our staff's interests and the union's interests actually align very substantially,' Andrew Richardson said. 'There will always be some differences but we are 90 per cent aligned, not 90 per cent divergent.'

The discussions began between senior management and senior union officials. But the workshops, facilitated by the Commission, were quickly spread throughout the organisation to involve line managers and employees at individual workplaces.

'It's those discussions that are the most important in ensuring we have engagement at a local level,' Natalie Lang said. 'We've seen it at a local level because workers have said in a proactive sense, †Here's something we'd like to see done better†and we've had that discussion and seen results.'

Since adopting the program no disputes involving House with No Steps have come before the Commission. The Commission remains actively involved in nurturing the collaborative relationship between the organisation and its employees.

'The Fair Work Commission's status and view in the community is really important,' Natalie Lang said. 'It's legitimate, it's serious business – it's not seen as fluffy and tinkering around the edges.'

'I think Deputy President Booth's involvement was critical,' Andrew Richardson said. 'I doubt very much that without her we would have worked our way through the process and got the outcomes we are now seeing.'

Deputy President Booth said: 'It's their progress. The Commission has simply provided them with some space to think about it, some models to assess and compare, some tools to use, and then they have gone and done the work themselves.'

House with No Steps credits the 'New Approaches' program with helping it to achieve better service delivery, financial outcomes and staff engagement.

'It's not so much 'New Approaches', it's just bleeding obvious common sense,' Andrew Richardson said. 'If you value your workforce you need to include them, you need to respect them. We've come a long way I think in re-learning that.'

Photo showing workers at a House with No Steps facility in Sydney.

Image: Workers at a House with No Steps facility in Sydney.

 

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Table 4: Dispute applications – timeliness
Type of
application
50% of matters 90% of matters
  2011–12 2012–13 2013–14 2014–15 2011–12 2012–13 2013–14 2014–15
s.739 – Application to deal with a dispute – lodgment to first conference (days) 15 15 17 16 38 38 46 45

General protections and unlawful termination disputes

General protections and unlawful termination disputes are a growing part of the Commission's work. The general protections provisions of the Fair Work Act are designed to protect employees from their employer taking adverse action against them for reasons set out in the legislation.

These include:

  • having or exercising a workplace right
  • freedom of association
  • engaging in industrial activity
  • workplace discrimination.

The Commission's role within the legislative framework is to assist parties to resolve a dispute in private conferences and in limited cases it can make a determination if both parties agree to the Commission doing so.

General protections disputes

General protections claims are sometimes referred to as adverse action claims. Adverse actions taken against an employee might include:

  • dismissing the person
  • not giving the person their legal entitlements
  • changing the person's job to their disadvantage
  • treating the person differently than others
  • not hiring the person, or
  • offering the person different (and unfair) terms and conditions, compared to other employees.

General protections disputes involving dismissal

If a person believes they have been dismissed in contravention of the general protections provisions, they may apply to the Commission to conduct a conference to deal with the dispute under s.365 of the Fair Work Act. The application must be made within 21 days of the date the dismissal takes effect. The Commission must then deal with the dispute by mediation or conciliation, or by making a recommendation or expressing a view. Such conferences must be held in private.

If the dispute is not resolved during the conference, the Commission must issue a certificate to this effect under s.368 of the Fair Work Act. The certificate allows the aggrieved party to apply within 14 days to the Federal Court of Australia or the Federal Circuit Court of Australia to have the matter determined. Alternatively, the parties can, within the same timeframe, consent to having the dispute arbitrated by the Commission.

The number of applications for the Commission to deal with general protections disputes involving dismissal has increased steadily. This year saw a 17.5 per cent increase in lodgments, compared with an 18.5 per cent increase from 2012–13 to 2013–14.

Table 5: General protections disputes involving dismissal – lodgments
No. of
applications lodged1
No. of
applications finalised
Manner finalised No. of applications
2013–14 2014–15 2013–14 2014–15   2013–14 2014–15
2879 3382 2778 3475 Certificate issued 967 1073
Without
certificate issued
1811 2402
  1. 2429 applications were lodged in 2012–13, 2162 applications were lodged in 2011–12.

Table 6 indicates that there has been a slight increase in the time taken to hold a conference in respect of general protections disputes involving dismissal. This may be the result of the overall increase in volume of lodgments. Despite this, the Commission completed its role in the process more quickly in 2014–15 than in 2013–14, with 90 per cent of matters being finalised within 97 days. This represents an 8.5 per cent improvement compared with the previous reporting period.

Table 6: General protections disputes involving dismissal – timeliness
  50% of matters 90% of matters
  2011–12 2012–13 2013–14 2014–15 2011–12 2012–13 2013–14 2014–15
Lodgment to first conference (days) 26 29 29 31 48 56 59 62
Lodgment to finalisation (days)1 35 41 41 37 97 111 106 97
  1. Lodgment to finalisation (days) includes matters that were finalised with or without a conference.

To date very few parties have opted to use the Commission's consent arbitration pathway. Of the 1073 disputes in respect of which a Member issued a certificate, only 16 (1.5 per cent) were submitted for consent arbitration.

Table 7: Applications for consent arbitration of general protections disputes involving dismissal
  2013–14 2014–15
Number 8 16

As demonstrated in Figure 11, the month-by-month statistics on lodgments reflect a peak in December followed by a compensatory dip in January. This is most likely explained by an expected drop in activity over the Christmas/New Year period.

Figure 11: General protections disputes involving dismissal – lodgments – monthly comparison

Figure 11 provides a month-by-month comparison of the number of applications lodged relating to general protections disputes involving dismissal from 2011-12 to 2014-15. It is a visual representation of the full source data that can be found in Table G8.

For source data see Table G8.

General protections disputes not involving dismissal

A worker who believes they have been subjected to adverse action for a prohibited reason, but who still remains employed, may also make a general protections dispute application to the Commission, under s.372 of the Fair Work Act. Where the alleged adverse action is not a dismissal, they have six years from the date of the action to lodge an application.

If attempts to resolve a general protections dispute not involving dismissal are unsuccessful at the Commission, the applicant may apply to either the Federal Circuit Court or the Federal Court to have the matter determined. However, s.375 of the Fair Work Act provides that the Commission's role includes the obligation to advise parties if it believes such a further application would have no reasonable prospect of success.

While there was an increase in the number of general protections disputes not involving dismissal brought before the Commission, the rate of increase has tapered off significantly. As shown in Table 8, there was a 12.8 per cent increase in lodgments over the 2013–14 figures, compared with a 40.4 per cent jump from 2012–13 to 2013–14.

Table 8: General protections disputes not involving dismissal – lodgments
Matter type No. of applications lodged
  2011–12 2012–13 2013–14 2014–15
s. 372 598 555 779 879

Compared with previous years, there was a slight increase in the time taken to begin dealing with general protections disputes not involving dismissal, as shown in Table 9.

Table 9: General protections disputes not involving dismissal – timeliness
  50% of matters 90% of matters
  2011–12 2012–13 2013–14 2014–15 2011–12 2012–13 2013–14 2014–15
Lodgment to first conference (days) 23 25 26 29 51 49 50 55