Employment disputes are an inevitable part of workplace relations. When conflicts arise between employers and employees, Australia’s robust employment dispute resolution framework provides multiple pathways to resolve these issues effectively. This framework emphasises resolving disputes at the workplace level first, before progressing to external resolution mechanisms if necessary.
The Legislative Framework
Employment dispute resolution in Australia operates primarily under the Fair Work Act, which establishes the legal foundation for addressing workplace disputes. The Act ensures employees have access to dispute resolution procedures set out in their applicable awards or enterprise agreements. These procedures can be used to settle disputes related to those instruments or to the National Employment Standards [1].
The Fair Work Act provides protections for parties engaged in dispute resolution processes. For example, dispute resolution must be conducted in private (although parties may have representatives present), and information or documents shared during the process cannot be disclosed unless it serves the purpose of resolving the dispute, the parties agree, or it is required by law [2].
Dispute Resolution Methods
Resolution Within the Workplace
The Australian system emphasises resolving disputes at the workplace level first. This typically involves:
- Direct discussion between the employee and their immediate manager to attempt to resolve the issue
- If unsuccessful, escalation to senior management for further discussion
- Potential involvement of union officials or workplace lawyers, such as Fair Workplace Solutions, who can play an important role in facilitating resolution.
Employment contracts, modern awards and enterprise agreements often contain specific dispute resolution procedures that should be followed to address conflicts efficiently.
Mediation
Mediation is a voluntary process where an independent third party (the mediator) helps the parties communicate effectively and work toward a mutually acceptable solution.
Key characteristics of mediation include:
- Mediators do not take sides, give advice, or decide who is right or wrong
- The process helps parties work through issues and reach solutions acceptable to everyone
- Mediation is typically informal, quicker, and less expensive than formal proceedings
- The process remains confidential
Mediation is particularly suitable for most workplace disputes, whether or not a formal grievance has been filed with the employer.
Conciliation or Conference
Conciliation or conference is similar to mediation but differs in that the conciliator may offer opinions or suggest resolutions.
Conciliation is very common in workplace disputes and is undertaken in unfair dismissal, general protections and a range of other claims in the Fair Work Commission. The process allows each party to negotiate in an informal setting to identify potential solutions.
Arbitration
Arbitration represents a more formal dispute resolution method where an independent and impartial arbitrator listens to evidence from both sides and makes a binding decision. Key aspects of arbitration in the Australian context include:
- It requires agreement from both parties to proceed
- The arbitrator has authority to impose a binding decision
- The process is generally faster and less expensive than court proceedings
- Arbitration decisions can typically only be appealed on limited grounds [5].
For example, in general protections dismissal cases, the Fair Work Commission can only conduct arbitration if both the employer and employee agree. The arbitration typically occurs several months after an unsuccessful conciliation, and parties must apply for arbitration within 14 days of receiving a certificate confirming that conciliation was unsuccessful.
Key Institutions in Employment Dispute Resolution
The Fair Work Commission
The Fair Work Commission (FWC), also known as Australia’s Employment Dispute Tribunal, plays a central role in the employment dispute resolution framework. When workplace disputes cannot be resolved internally, either party may refer the dispute to the Commission after all appropriate steps have been taken at the workplace level. The Commission can:
- Attempt to resolve disputes through conciliation, mediation, expressing an opinion, or making recommendations
- If unable to resolve the dispute at the first stage, arbitrate the dispute (if both parties agree) and make binding determinations
The Commission’s decisions when arbitrating a dispute can be appealed under Division 3 of Part 5.1 of the Fair Work Act [6].
The Fair Work Ombudsman
The Fair Work Ombudsman provides assistance with underpayment and wage disputes. They investigate complaints of underpayment or incorrect payment and can demand payment on behalf of an employee.
Uncommonly, parties can use their Dispute Assistance service offers a no-cost way for parties to resolve issues with expert assistance to mediate payment disputes. This service typically takes 2-4 weeks and helps parties understand their legal obligations, improve communication, and make informed choices.
The Ombudsman notes that most disputes occur because “people don’t know what the law is, or communication has broken down.”
Dispute Resolution in Awards and Agreements
Modern Awards
Dispute resolution clauses can vary between awards but generally follow a similar approach to resolution procedures. These typically involve attempted resolution within the workplace first, followed by potential referral to the Fair Work Commission if internal efforts are unsuccessful.
Enterprise Agreements
When negotiating a new enterprise agreement, the parties must agree to a dispute resolution procedure. Before approving an enterprise agreement, the Fair Work Commission checks that it contains a dispute resolution clause that:
- Requires or allows the Commission or another independent person to settle disputes about matters arising under the agreement or the National Employment Standards
- Allows employees to have a representative
These requirements ensure that all enterprise agreements provide clear pathways for resolving workplace disputes.
The Role of Unions in Dispute Resolution
Unions play a significant role in Australia’s employment dispute resolution landscape. Union officials and workplace delegates can be important facilitators in resolving workplace disputes, and employees may choose to seek advice from their union representative or involve them in discussions.
Unions possess specific rights that enable them to represent their members effectively in dispute resolution processes:
- Right to represent members during negotiations with employers
- Right to enter workplaces to investigate suspected contraventions of workplace laws
- Right to apply to the Fair Work Commission to enforce workplace laws and resolve disputes
- Right to protect members’ interests through legal action when necessary
These rights ensure that unionised employees have access to representation and support during dispute resolution processes.
It is typical for an employee to have either a union representative or an employment lawyer. Not both at the same time. However, if the employee is unsure about the advice given by the union representative and wants a second opinion, they can seek legal advice on the issue as well.
Legal Avenues
If disputes cannot be resolved through workplace procedures, mediation, conciliation, or arbitration, parties may pursue legal action. The small claims process under the Fair Work Act can be used to recover employee entitlements or other debts up to $100,000. This process is designed to be quicker, cheaper, and more informal than regular court proceedings, however there are still costs involved.
Employees can seek legal advice from solicitors, community legal centres, or legal aid services at any stage of a dispute. To find appropriate legal assistance, individuals can contact the law institute or law society within their state or territory or the Australian Community Legal Centres.
Practical Approach to Dispute Resolution
A graduated approach to employment dispute resolution emphasises a practical, step-by-step process:
- Attempt to resolve the dispute informally at the workplace level through direct discussion
- Follow dispute resolution procedures outlined in applicable awards or agreements
- If unsuccessful, consider mediation or conciliation services or get a lawyer involved to assist with a resolution
- For unresolved disputes, consider referral to the Fair Work Commission
- As a last resort, pursue legal action through appropriate courts
This graduated approach aims to resolve disputes at the earliest possible stage, minimising costs and preserving workplace relationships where possible.
In Summary
Australia’s employment dispute resolution framework provides multiple pathways for addressing workplace conflicts effectively. By emphasising resolution at the workplace level first, while providing access to external mediation, conciliation, and arbitration services when needed, the system strikes a balance between informal negotiation and formal adjudication.
The involvement of institutions like the Fair Work Commission and Fair Work Ombudsman, along with the clear dispute resolution procedures required in awards and agreements, helps ensure that both employers and employees have access to fair, efficient, and cost-effective resolution processes. While perfect resolution is not always possible, Australia’s multi-layered approach to employment dispute resolution provides significant opportunities for parties to find workable solutions to workplace conflicts without necessarily resorting to costly and time-consuming litigation.
Need help? That is what the team at Fair Workplace Solutions is here for, reach out to us with any questions you may have about employment dispute resolution, we’ll be glad to assist you.
Sources:
[1] https://www.fairwork.gov.au/tools-and-resources/
[3] https://www.austlii.edu.au/
[4] https://www.fairwork.gov.au/workplace-problems/
[5] https://www.wic.vic.gov.au/
