Employment disputes are a significant aspect of workplace relations in Australia, requiring both employers and employees to understand their rights, obligations, and available resolution mechanisms.
Definition and Distinction from Grievances
An employment dispute is specifically defined as “a disagreement concerning an employee’s statutory or contractual rights or entitlements”. This definition is important as it distinguishes disputes from grievances, which are “statements of complaint raised by an employee about something in the workplace with which they are unhappy”. Grievances are typically raised in and deal with internally.
While grievances typically relate to workplace issues like poor communication or colleague behaviour, disputes specifically concern legal rights and entitlements protected by legislation, awards, or employment contracts.
Most Common Types of Employment Disputes in Australia
The most common types of employment disputes in Australia include:
Unfair Dismissal Claims
These arise when an employee believes their termination was harsh, unjust, or unreasonable. Such claims are often lodged with the Fair Work Commission (FWC) and are among the most frequent forms of employment litigation.
Discrimination, Bullying and Harassment
Claims related to workplace discrimination (based on race, sex, disability, etc.) and harassment (including sexual harassment) are significant. Employers have a legal obligation to prevent such conduct, and breaches often lead to litigation under federal or state anti-discrimination laws.
Wage and Payment Disputes
These involve underpayment or non-payment of wages under the Award or National Wage. The Fair Work Ombudsman (FWO) oversees compliance with wage laws and can take enforcement action against employers who violate them. Where the FWO cannot assist in the dispute these types of matters often lead to court where you will likely need a solicitor. Please note that the FWO do not deal with matters of non-payment of commission or underpayment of a contractual rate of pay which is over and above the Award rate or National Minimum Wage. These are contractual disputes.
General Protections Claims
These occur when an employee alleges unfavourable treatment due to exercising workplace rights or possessing protected attributes (e.g., race, gender). The Fair Work Act provides broad protections against such actions.
Bullying and Workplace Safety Issues
Claims of psychological hazards, unsafe work environments, or breaches of workplace health and safety regulations are also common. Employers must ensure a safe and respectful workplace to avoid such disputes, otherwise employees can make a complaint to Safe Work Australia.
Enterprise Bargaining-Related Disputes
Many industrial disputes stem from enterprise bargaining negotiations over employment conditions and remuneration. These disputes often involve collective actions like strikes.
Contractual Disputes
Disputes over breaches of employment contracts, such as issues related to confidentiality or restraint of trade clauses, are another frequent category. However, to resolve these matters, a court will likely make a decision. However, outside of court options can apply.
These disputes reflect a wide range of workplace issues governed by Australia’s robust legal framework, including the Fair Work Act 2009 and anti-discrimination laws.
Check out our blog post on Employment Dispute examples for some specific case studies of these different types of disputes.
Legal Framework Governing Employment Disputes
The Fair Work Act and National System
The Fair Work Act 2009 serves as one of, if not the, most important piece of employment law in Australia. This is because it covers most Australian workplaces. It provides the minimum terms and conditions for most employees and provides the law behind many of the disputes listed above.
Awards and Enterprise Agreements
Many Australian workers are covered by enterprise agreements or modern awards that set wage rates and other employment conditions for specific industries. These instruments typically include dispute resolution clauses that outline processes for settling disagreements related to the award, agreement, or the National Employment Standards.
State and Territory Legislation
While the federal system covers most Australian private sector employers, some states maintain their own workplace relations systems. For example, Western Australia has a state-based system that partially covers the private sector. Understanding which system applies to a particular workplace is crucial for determining applicable legislation.
Dispute Resolution Mechanisms
Workplace-Level Resolution
The initial step in resolving employment disputes typically involves internal discussions within the workplace. As outlined in the model term for dispute resolution:
“In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the employee or employees and relevant supervisors and/or management” [1].
This approach aligns with best practices for effective dispute resolution, as it allows for direct communication between affected parties before escalating to external processes.
Fair Work Commission Processes
When workplace-level resolution fails, disputes can be referred to the Fair Work Commission (FWC), which plays a crucial role in Australia’s employment dispute resolution system. The Commission can deal with disputes through various methods, including:
- Conciliation is a voluntary process where employers and employees resolve disputes in an informal setting, with conciliators facilitating the meeting. The conciliator does not make a decision on the matter, and it is up to the parties to come to a mutual agreement.
- Hearing is a court-like process with a commissioner deciding on the facts. This only happens in certain claims, not all, after the parties have failed to come to a mutual agreement in a conciliation.
Legal Avenues
For disputes not resolved through the above mechanisms, legal options include:
- The small claims process under the Fair Work Act for recovering entitlements up to $100,000.
- Legal action through federal courts (Federal Circuit Court or Federal Court of Australia).
- Claims through state-based employment dispute tribunals for certain matters.
Time Limits and Procedural Requirements
Unfair Dismissal Claims
For unfair dismissal claims, employees must apply to the Commission “within 21 days of the dismissal taking effect” [3]. Additionally, employees need to meet minimum employment periods before being eligible to apply: 6 months for businesses over 15 employees and 12 months for small businesses (those with fewer than 15 employees).
The Role of Other Agencies
Fair Work Ombudsman
The FWO can help employers and employees solve workplace problems for free with their Dispute Assistance service. An Officer explains the rules and helps everyone make smart choices, usually taking 4-6 weeks.
Please note that the FWO is a very busy organisation and may not have the capacity to take on all matters, even if there is merit.
Australian Human Rights Commission
The Australian Human Rights Commission investigates and conciliates complaints about alleged discrimination under federal anti-discrimination statutes. Unresolved complaints must be pursued in federal courts.
Facing a Dispute? Your First Steps
When dealing with an employment dispute, taking the right initial steps is crucial to protect your rights and work toward a resolution. Here are clear, actionable steps to guide you:
1. Stay Calm and Professional
Avoid reacting emotionally or impulsively. Maintaining professionalism can help preserve your credibility and keep the situation manageable.
2. Document Everything
Start keeping detailed records of the dispute. This can be done in a paper or electronic diary format. The details you should include are:
- Dates, times, and locations of incidents.
- Emails, messages, or any written communication related to the issue.
- Names of any witnesses or individuals involved.
- Notes about conversations or meetings regarding the dispute.
3. Check Your Contract and Handbook
Review your employment contract, workplace policies, and employee handbook to understand your rights, obligations, and the procedures for resolving disputes within your organisation.
4. Consider Informal Discussion (If Appropriate and Safe)
If you feel comfortable and it is safe to do so, consider addressing the issue directly with the other party or your manager. Sometimes disputes can be resolved through open communication before escalating further.
Do remember, that whilst HR companies are there to hear your issues in the workplace, they work for the employer. Their interests are aligned with the employer and it is their job to protect the company, regardless of their empathy with you and your situation.
5. Seek Initial Advice
Don’t delay in getting advice from a trusted source. This could include:
- Consulting with a union representative (if applicable).
- Speaking with a workplace mediator or HR professional.
- Reaching out to the friendly team of employment lawyers at Fair Workplace Solutions for guidance on your options. We can help you with any of the above disputes.
Taking these steps early can help you stay organised, informed, and prepared as you navigate the dispute resolution process.
Sources:
[1] https://classic.austlii.edu.au/au/legis/cth/consol_reg/fwr2009223/sch6.1.html
[2] https://www.fairwork.gov.au/tools-and-resources/best-practice-guides/effective-dispute-resolution
[3] https://www.fairwork.gov.au/ending-employment/unfair-dismissal
