Commission Role

1. DISPUTE RESOLUTION AND THECOMMISSIONSenior Deputy President Acton acton.sdp@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 workplacedetermination(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.