10 – Best Practice Guide – Effective dispute resolution
Working at best practice
Disputes can arise at any workplace. A dispute exists when one or more people disagree about something and matters remain unresolved. A fair and balanced dispute resolution process is important for the effective operation of any business. This Best Practice Guide explains the:
advantages of best practice dispute resolution
requirement for a dispute resolution clause in modern awards and enterprise agreements, and the rules regarding overlap between these instruments ·
benefits of a dispute resolution clause even where employees are not covered by awards or enterprise agreements ·
features of a good dispute resolution clause, and
rules regarding the powers of the Fair Work Commission or other independent persons in resolving a dispute. Included also is a checklist on best practice dispute resolution. This guide illustrates best practice when it comes to effective dispute resolution. For specific information regarding your minimum legal obligations and entitlements, contact the organisations listed under the ‘For more information’ section at the end of this guide. Why work at best practice?
Effective dispute resolution can help employers to maintain good relationships with their employees by dealing with workplace issues at an early stage. Employees will likely be more cooperative and productive if they know that their grievances will be taken seriously by the employer and there is the opportunity for an independent party to assist in resolving the dispute if it cannot be resolved at the workplace. A good dispute resolution process with a focus on effective resolution at the workplace level may help to avoid the costs of resolving a claim externally; for instance, via arbitration before the Fair Work Commission, or through litigation in the Federal Court of Australia. What is dispute resolution?
Dispute resolution refers to the processes by which disputes are brought to an end. This can occur through: ·
a negotiated outcome, where the parties concerned sort out things themselves ·
a mediated outcome, where the parties use the services of an independent mediator to help them arrive at their own agreement, or ·
an arbitrated or adjudicated outcome, where an independent arbitrator or court determines how the dispute is to be resolved and makes a binding decision or order to this effect. Dispute resolution in modern awards and enterprise agreements
The Fair Work Act 2009 (FW Act) requires that all modern awards include a term which sets out a procedure for resolving disputes between employers and employees about any matter arising under the modern award and the National Employment Standards (NES). Every modern award contains a dispute resolution clause. Generally, the clause will provide for a process with the following stages: ·
employee/s meet with their direct supervisor to discuss the grievance ·
failing resolution, the matter is discussed further with more senior management ·
failing resolution of the matter, the employer refers the dispute to a more senior level of management or more senior national officer within the organisation ·
where the dispute remains unresolved, the parties may jointly or individually refer the matter to the Fair Work Commission, and ·
the employer or employee may appoint another person, organisation or association to represent them during this process. Employers should be aware of, and familiarise themselves with, any dispute resolution procedure that applies to their workplace. Enterprise agreements
When making an enterprise agreement, the FW Act requires the parties to include a dispute resolution clause. Enterprise agreements lodged with the Fair Work Commission without such a clause will not be approved. The dispute resolution clauses in enterprise agreements must provide a process to resolve any disputes: ·
arising under the agreement, or
relating to the NES....
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