Research & Information
Announcement - S 146A Referral Agreements

4 May 2006

The Industrial Relations Act 1996 was recently amended to include section 146A which provides that the Commission may assist parties who wish to refer disputes to the Commission.

Nature of referral agreements

Parties to certain disputes may agree that the Commission provide them with assistance. Such agreements, called 'referral agreements', may relate to a particular dispute, or to a particular class of disputes (a 'general referral agreement').

'Parties' are not specifically defined in the section, however, may be taken to include an industrial organisation of employees and an employer (or one or moreemployers and/or one or more industrial organisations of employees).

These parties may make referral agreements about disputes of the following kind:

    • a dispute about any conditions of employment or industrial matters
    • a dispute of the kind referred to in section 332 (2) or (3), that is, disputes relating to contracts of carriage or bailment
    • or a dispute about a claim for compensation of the kind referred to in section 346, that is, relating to the termination of certain contracts of carriage: 'Industrial matters' are defined generally in section 6 of the Act and that section lists a number of exa​mples of industrial matters.
      How to commence proceedings

      The Commission will shortly publish Practice Direction No. 18 - Disputes pursuant to section 146A of the Industrial Relations Act 1996.

      Shortly, that Practice Direction will provide that parties who wish to bring disputes before the Commission under s146A shall do so by means of the dispute notification - new Form 4A.

      The dispute notification should normally mention the referral agreement in part 5 of this dispute notification form - 'the award, agreement or determination which applies' to the parties. Such a notification might, for example, provide:
          This dispute is notified in accordance with the parties' referral agreement of [date], a copy of which is attached, or
          This dispute is notified in accordance with the parties' general referral agreement of [date], a copy of which was filed in the Industrial Registry on [date]

      However, where the parties' referral agreement relates to parts of the Act in respect of which other kinds of forms of application are prescribed, then the notifier should annex forms to the dispute notification, which broadly conform with such other forms, to the dispute notification. For example, if the referral agreement concerns a dispute about an alleged unfair dismissal, a Form 7A, usually used to initiate an unfair dismissal application, should be annexed to the dispute notification.

      Practice Direction No. 18 will also provide that the following standard directions will apply in respect of matters listed pursuant to a s.146A referral agreement:
        • that a copy of the referral agreement is provided when the matter comes before the Commission (if not already filed with the Industrial Registrar or annexed to the dispute notification)
        • each party to the dispute will have a representative attending the Commission who is fully conversant with the matter and who has full authority in relation to the settlement of the matter
        • where the parties have agreed that the Commission is to exercise functions in respect of which standard directions have been established by the Commission, those standard directions will apply unlessthe parties have agreed otherwise in their referral agreement.

      Referral agreements must be in writing

      The parties must ensure that their referral agreement is evidenced in writing (s146​A(1)). If not attached to the notification, a copy of the referral agreement should be provided to the Commission when the dispute firstcomes before the Commission.

      In the case of a general referral agreement, a copy of the agreement may be filed by forwarding a copy of that agreement under cover of letter to the Industrial Registrar with a request that the document be received as a general referral agreement between the parties for the period of its duration.

      The Commission's functions

      The Commission may exercise such functions as are specified in the referral agreement. Parties should note that these functions may include (s1​46A(4)):
      • the conciliation of the dispute,
      • the arbitration of the dispute,
      • the granting of a remedy or other relief of the kind provided by Part 6, 7 or 9 of Chapter 2,
      • the granting of a remedy or other relief of the kind provided by Part 7 of Chapter 6,
      • the determination of any other issue or question arising in the dispute.
        Such an agreement might, for example, provide:

        1 The Commission may exercise its statutory powers of conciliation in relation to the dispute.

        2 The Commission may exercise its statutory powers of conciliation, arbitration and declaratory relief, in relation to the dispute, including all related procedural powers such as those in relation to hearings, witnesses, evidence and submissions.

        3 The Commission may exercise its statutory powers under s106 of the Act in relation to the contract or arrangement, related condition or collateral arrangement in dispute, including related all procedural powers such as those in relation to hearings, witnesses, evidence and submissions.

        4 The Commissionmay assist the parties in relation to the dispute by providing mediation services.

        5 The Commission may exercise the powers and functions as the parties agree in the proceedings.

        Effect of the Commissions' decisions

        Any order, determination or other decision made by the Commission in proceedings brought under a referral agreement is not binding on the parties to the dispute unless they have expressly agreed, in the referral agreement, that it will be binding upon them (s146A(8)). Such an agreement might, for example provide:
            The parties agree that the Commission's order, determination or other decision will bind them. Upon such order, determination or other decision the parties shall implement it forthwith or within such other time as may be specified by the Commission.

        Appeals

        Unless the parties agree, there is no right of appeal from any order, determination or decision of the Commission made about a dispute notified to the Commission under a referral agreement (s146A(9)). Such an agreement might, for example provide:
            The parties agree that the Commission's order, determination or other decision will bind them, subject to either party exerting a right of appeal against the decision to a Full Bench. In the case of such an appeal, the parties agree that the Full Bench's appeal decision will bind them.

        Who will deal with the dispute?

        Whether the dispute will be dealt with by a member of the Commission, or a member of the Court, will depend on the nature of the functions which the parties have agreed that the Commission may exercise in relation to the dispute (s146A(6)). Some functions may only be exercised by a judicial member of the Court (s153).

        Upon notification disputes will be allocated to a Member in accordance with standard procedures.


        Form for notification of dispute.

        Click herefor the new form of notification (Form 4A) or contact the Industrial Registry on 9228 7766

        Further information.

        Click herefor a FactSheet on this topic.


        Industrial Registrar
        4 May 2006