Announcement - S 146B Dispute Resolution Functions

20 March 2007

The Industrial Relations Act 1996was amended on 1 December 2006 to include section 146Bwhich provides as follows:

      146BCommission may exercise certain dispute resolution functions under federal workplace agreements
      (1) A person may apply to the Commission to have a dispute resolution process conducted by the Commission in relation to a matter or matters in dispute if:
          (a) the parties to the dispute are bound by a federal workplace agreement, and
          (b) the Commission is authorised or permitted to conduct the dispute resolution process:
              (i) under dispute settlement procedures (within the meaning of section 353 of the federal Act) set out in the agreement, or
              (ii) if no such dispute settlement procedures are set out in the agreement, under the federal model dispute resolution process.
       
          Note.Section 353 of the federal Act provides that a federal workplace agreement must include procedures for settling disputes about matters arising under the agreement between the employer and the employees whose employment will be subject to the agreement. The section also provides that if the workplace agreement does not include such procedures, then the agreement is taken to include the model dispute resolution process set out in Part 13 of that Act.

      (2) On any such application, the Commission has and may exercise such functions with respect to the resolution of the dispute as are conferred or imposed on it by or under:
          (a) the federal workplace agreement concerned or federal model dispute resolution process (as the case may be), and
          (b) the federal Act.

      (3) The Commission is to be constituted by a single member of the Commission unless the federal workplace agreement concerned, federal model dispute resolution process or federal Act (as the case may be) requires otherwise.

      (4) Subject to subsection (5), the exercise of a function conferred or imposed on the Commission as referred to in subsection (2) is, for the purposes of any other provision of this Act, taken not to have been exercised under this Act.

      (5) The regulations may make provision for or with respect to the application of the provisions of this Act (with such modifications, if any, as may be prescribed by the regulations) to the exercise of functions conferred or imposed on the Commission as referred to in subsection (2).

      (6) The functions that the Commission is authorised or permitted to exercise as referred to in this section are in addition to, and do not derogate from, any other function of the Commission.
      (7) Nothing in this section:
          (a) makes any order, determination or other decision of the Commission in respect of the dispute binding on the parties to the dispute unless the federal workplace agreement concerned, federal model dispute resolution process or federal Act (as the case may be) operate to make any such order, determination or decision binding on the parties, or
          (b) limits the operation of section 146A.

      (8) In this section:
          federal Actmeans the Workplace Relations Act 1996of the Commonwealth.
          federal model dispute resolution processmeans the model dispute resolution process within the meaning of the federal Act.
          federal workplace agreementmeans a workplace agreement within the meaning of the federal Act.
          modificationincludes addition, exception, omission or substitution.
Choosing the New South Wales IRC

The Workplace Relations Act 1996provides that workplace agreements must include procedures for resolving disputes about matters arising under the agreement between the employer and the employees whose employment will be subject to the agreement. The parties decide what kind of dispute resolution procedures they will include within the agreement. If a workplace agreement does not include dispute resolution procedures the agreement is taken to include the model dispute resolution procedure under Part 13 of the Workplace Relations Act 1996(s.353).

A workplace agreement may include a provision that allows reference of disputes that are unable to be resolved at a workplace level to a third party for a dispute resolution process to be conducted.

If parties seek that the New South Wales Industrial Relations Commission provide the forum for that dispute resolution process they would need to include a clause within the workplace agreement to that effect. For example,

          Where a dispute in respect of a matter arising under this workplace agreement is unable to be resolved at a workplace level and the parties have undertaken all agreed steps within this agreement to resolve the dispute, the matter may be referred to the New South Wales Industrial Relations Commission for resolution.
The Commission's functions
    • Under s.146B(2)the Commission may exercise such functions with respect to the resolution of the dispute as are conferred or imposed on it by or under (a) the federal workplace agreement concerned or federal model dispute resolution process (whichever is applicable) and (b) the federal Act.

The parties to a workplace agreement may nominate the powers and functions to be conferred on the Commission for the purpose of the dispute resolution process. Such an agreement might, for example, provide
          Where a dispute has been referred to the New South Wales Industrial Relations Commission in accordance with the term of a workplace agreement in relation to dispute resolution, the parties agree that 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.

Effect of Commissions' decisions

Section 146B(7) provides that any order, determination or other decision of the Commission in respect of the dispute is not binding on the parties unless the federal workplace agreement concerned, federal model dispute resolution process or the federal Act (as the case may be) operates to make it so binding. Parties to any workplace agreement should consider including a clause that will satisfy this requirement. For example,
          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.

Appeal

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 the dispute resolution procedures of a workplace agreement. 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

How to commence proceedings

An application seeking the Commission to exercise its functions under section 146B of the Act is to be filed on a Form 2x - Application - s146B- Commission to exercise dispute resolution functions.

Who will deal with the application?

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 application. 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


Mick Grimson
Industrial Registrar