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New employment dispute resolution process available in Western Australia

New legislation in Western Australia enables employers and employees to seek the assistance of the Western Australian Industrial Relations Commission (WAIRC) to mediate any employment dispute that arises between them.

Implications for employers

The Employment Dispute Resolution Act 2008 (WA) (EDR Act) provides employers, employees and organisations in the federal and state industrial relations systems with alternative options for resolving their disputes.

The primary objective of the EDR Act is to create a dispute resolution framework which is informal, easily accessible, expeditious and effective.

Three important elements of the EDR Act are that it enables the WAIRC to:

  • provide mediation services with parties’ consent
  • deal with a dispute or disputes, including by arbitration, where the parties make written referral agreements that provide for this, and
  • provide alternative dispute resolution in accordance with federal workplace agreements and the model dispute resolution process in the Workplace Relations Act 1996 (WR Act).

Mediation

The EDR Act provides that the WAIRC may act as mediator only on request by a party to an existing or potential employment dispute and only with the consent of each of the parties likely to be involved in the dispute. A request can be made by an employee or group of employees, employer or group of employers or an organisation of employees or employers. Where the employment relationship has ceased, the operation of these provisions is expressly preserved where the matter in dispute relates to the employee’s dismissal or benefits under their contract.

Under the EDR Act the WAIRC may take action appropriate to assisting the parties to resolve the dispute that is the subject of mediation. However, in its capacity as mediator, the WAIRC does not have the power to compel a person to do anything, arbitrate the dispute or otherwise determine the rights or obligations of a party to an employment dispute. At most, where the parties request it to do so, the WAIRC may make recommendations on aspects of the dispute about which the parties are unable to reach agreement.

Where any parties to the dispute reach agreement on any aspect of the dispute, the EDR Act provides that the WAIRC may register a mediation settlement agreement with the parties’ consent. A mediation settlement agreement is binding on the parties and enforceable in the Industrial Magistrates’ Court as if it were an industrial agreement under the Western Australian Industrial Relations Act 1979 (IR Act). However, the mediation settlement agreement is not capable of varying the operation of an existing award, order or agreement under the IR Act.

Referral agreement

In addition to providing the WAIRC with new mediation functions, the EDR Act enables the WAIRC to resolve employment disputes where the parties to a dispute have made a written agreement that provides for the WAIRC to exercise dispute resolution functions in accordance with its terms (referral agreement).

A referral agreement must specify the functions that may be performed by the WAIRC when an employment dispute is referred for resolution. Examples of the functions that may be included in a referral agreement are mediation or conciliation, arbitration, granting a remedy or relief under the IR Act or deciding any other issue or question arising in an employment dispute.

If the parties reach agreement on any aspect of the dispute, the WAIRC may, with the parties’ consent, make a binding order in terms of that agreement or make and file a memorandum of the agreement. If the WAIRC makes an order, the order may vary the operation of an existing award, order or agreement under the IR Act in respect of the consenting parties.

Resolution under federal workplace agreement or model dispute resolution process

Parties in the federal system may seek dispute resolution by the WAIRC under the EDR Act in the following circumstances:

  • where the parties are bound by a federal workplace agreement and that agreement in its dispute resolution procedure permits or provides a role for the WAIRC in resolving disputes, or
  • where the dispute is subject to the model dispute resolution process under the WR Act and the parties agree to the WAIRC conducting the model dispute resolution process.

Privacy and privilege

The EDR Act provides for the confidentiality and non-admissibility into evidence of communications and documents made or disclosed during a mediation or referral proceeding, except in relation to the enforcement of an agreement made under the EDR Act.

The EDR Act came into operation on 1 December 2008.

Who does this affect?
All Australian employers

What do you need to do?
Ensure you are updated on recent developments

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