AN170010 – Building and Construction Industry Award

PART VII - CONSULTATION AND DISPUTE RESOLUTION 

37. SETTLEMENT OF DISPUTES

(a) In the event of any dispute or claim arising between an employer and an employee such dispute or matter shall be dealt with in the following manner:

(i) In the first instance the dispute or claim shall be taken up with the foreperson or supervisor by the employee or employees concerned or the duly appointed union representative.

(ii) For the purposes of this award ‘duly appointed union representative’ shall mean the union member appointed as a job steward/delegate by the union members employed at each company or site and accredited by the union. Such job steward/delegate shall be allowed the necessary time during working hours to interview the employee(s), the employer or nominated employer representative, and duly accredited Officials of the Union on the matters in dispute.

(iii) PROVIDED that the foregoing does not relieve the job steward/delegate of the obligation imposed by the employer.

(iv) If the dispute or claim is not satisfactorily resolved in accordance with (a) hereof, then the employee(s) or the duly appointed union representative shall approach the employer or the employer’s representative for discussion and/or negotiation.

(v) If the matter remains unresolved then the duly appointed union representative shall inform the State Secretary or the State official responsible of the union of the nature of the matter in dispute or claimed and discussions shall take place as soon as possible between such officers or representatives of an association of employers as the employer may desire and the respective union. The employer shall afford to the duly appointed union representative such available facilities as to assist in making early contact with the union.

(vi) If settlement cannot be reached through the above procedures then either party may refer the matter to the Commission.

(vii) Where the above procedures are being followed, work shall continue normally. No party shall be prejudiced as to final settlement by the continuance of work in accordance with this subclause. This subclause shall not apply to any dispute involving a bona fide safety issue.

(viii) If the dispute is not finalised within seven days of notification the parties shall be free to exercise their rights.

(ix) PROVIDED however, that where a separate disputes settlement procedure has been agreed between the parties as part of an on-site agreement, and this has been endorsed by the Commission, that procedure shall prevail over the above.

(x) Each duly appointed union representative shall be granted up to five days paid leave per year to undertake training that will assist them in their settlement of disputes role. The time of taking such leave shall be agreed with the relevant union so as to minimise any adverse effect on the employer’s operations.

(b) Demarcation Disputes Procedure

All demarcation disputes shall be dealt with in accordance with the following procedure and without recourse to any form of industrial action.

Demarcation disputes shall be dealt with in one of the following methods:

(i) By agreement between the unions directly involved.

(ii) By private arbitration.

(iii) By decision of the Tasmanian Industrial Commission.

(iv) If necessary or appropriate, a joint sitting shall be requested in accordance with the appropriate provision of the Industrial Relations Act 1984 and the Australian Industrial Relations Act 1988.

Upon becoming aware of an actual or potential demarcation dispute, officials of the unions directly involved will discuss the issue to see if the dispute can be resolved by agreement.

The work in dispute will continue normally while the above discussions continue. If there is a dispute about the basis on which work shall continue, it shall be referred immediately for determination by one of the methods listed above for dealing with demarcation disputes. The basis upon which work shall proceed shall be determined after considering the practice that existed prior to the dispute on the particular job. Until the basis upon which work is to proceed is determined, work shall continue in the manner decided by the relevant employer.

If it is not possible for the unions directly involved to resolve a dispute by agreement, they may jointly elect to seek resolution of the dispute by any one of the other methods listed above. If the unions have elected to accept private arbitration, one of them cannot subsequently decide not to be bound by the decision. Even if one union subsequently ceases to co-operate in the private arbitration, the arbitrator will proceed to issue a decision and all affected parties will act in accordance with it.

If the unions elect not to use a private arbitrator, or if they are unable to agree whether or not to do so, the dispute shall be referred to the Tasmanian Industrial Commission for formal arbitration.