A workplace dispute can be defined as when one or more parties disagree about a matter and are unable to resolve it amicably. Workplace disputes generally arise between an employee and an employer but can also involve other parties such as a union official.
Types of Workplace Disputes
Due to the enactment of greater employee rights over the years, workplace disputes have become more common and can be about a range of matters. The workplace disputes that currently arise under the Fair Work Act 2009 (Cth) can be summarised as follows:
- Workplace bullying.
- Sexual harassment.
- General protections — adverse action because of a prohibited reason (e.g. taking leave).
- Flexible work and unpaid parental leave requests.
- Disputes arising from dispute resolution procedures — i.e. a matter under a modern award or enterprise agreement, or a National Employment Standards ('NES') matter.
- Unfair dismissal.
- Unlawful discrimination.
- Changing from casual to part-time or full-time.
- Fixed term contracts.
- Right to disconnect.
- Regulated labour hire arrangement order.
- Independent contractor disputes about unfair contract terms.
- Bargaining disputes and industrial action.
- Union right of entry.
Dispute Resolution Process
While each type of dispute has its own dispute resolution process, they are generally initiated by an application to the Fair Work Commission ('FWC') which the FWC tries to resolve by conciliation and, if not successful, then by arbitration.
Conciliation is a confidential and informal process conducted by a conciliator or tribunal member whereby the parties attempt to negotiate a mutually agreeable settlement.
Arbitration is a formal and legally binding process whereby a tribunal member acts like a judge to review evidence, hear arguments, and make a final and enforceable decision.
Concluding Comments
While there are some cases where an employer receives an application that is unanticipated or without warning, in the majority of cases there is usually an unresolved complaint or workplace dispute that precedes an application. It's in these situations that it is important to take proactive steps, as what is said and done prior to receipt of an application can greatly affect the outcome during a dispute resolution process.
How We Can Help
Practical support, shaped to your matter.
Employer Services Legal can provide advice at an early stage to navigate these legal problems before they escalate. We can provide ongoing advice during a dispute, review or draft emails and correspondence, as well as draft speaking points for meetings. If the dispute escalates to an FWC application, we can then provide representation during the conciliation and arbitration process. It's important to remember that early advice and assistance can greatly increase the prospects of defending against a claim.
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