Announcement - S 146B Dispute Resolution Functions

30 July 2010

Since 1 December 2006 the Industrial Relations Act 1996 (IR Act) has included provision for the Commission to exercise certain dispute resolution functions in respect of federal workplace agreements.

Following the transfer of the private sector from the State system to the federal system, the IR Act was amended as part of the process of aligning NSW industrial laws with the new national industrial relations legislation.

Various provisions of the Fair Work Act 2009 and its predecessor, the Workplace Relations Act 1996 , made it possible for the parties to various types of federal industrial instruments to nominate persons to provide dispute resolution services. Most Preserved State Agreements had expired but some have had their nominal duration extended pursuant to the provisions of Workplace Relations Amendment (Transition to Forward with Fairness) Act 200 8 , which was the first tranche of Fair Work laws.

The NSW Government saw it as appropriate for the NSW laws to be amended to ensure that rights of parties to nominate members of the State Commission as their dispute provider was respected. In that context, the definition of federal enterprise agreement was broadened to include a Preserved State Agreement where such an agreement is still in its nominal term.

Simply put, amendments to section 146B ensure that parties who have previously agreed may continue to nominate members of the Industrial Relations Commission of New South Wales to perform such dispute resolution services.

Members of the Industrial Relations Commission of New South Wales have extensive experience in the wide range of alternative dispute resolution practices. Over many years the members have developed the skills necessary to help employers and employees resolve their differences drawing, as they do, on both their industrial and legal knowledge. Widely recognised as an 'independent umpire' that can achieve a fair and reasonable result, the Industrial Relations Commission of New South Wales will move quickly to determine any application brought under section 146B .

The relevant legislative provision

Section 146B provides as follows :

146B Commission may exercise certain dispute resolution functions under federal enterprise 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 enterprise agreement, and
    (b) the Commission is authorised or permitted to conduct the dispute resolution process under procedures set out in the agreement.
(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 enterprise agreement concerned, and
    (b) the federal Act.

(3) The Commission is to be constituted by a single member of the Commission unless the federal enterprise agreement 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 makes any order, determination or other decision of the Commission in respect of the dispute binding on other parties to the dispute unless the federal enterprise agreement concerned or federal Act operate to make it binding on the parties.

(8) In this section:

federal Act means the Fair Work Act 2009 of the Commonwealth.

federal enterprise agreement means:
    (a) an enterprise agreement, or
    (b) a preserved State agreement (but only if the nominal term of the agreement has not yet expired),
    within the meaning of the federal Act (and includes any workplace agreement within the meaning of the former Workplace Relations Act 1996 of the Commonwealth that continues in force under the law of the Commonwealth).

modification includes addition, exception, omission or substitution.
          .
Choosing the New South Wales IRC

The Fair Work Act 2009 details procedures about dispute resolution for modern awards, enterprise agreements or contracts of employment where matters arise under the instrument between the employer and the employees. The parties decide what kind of dispute resolution procedures they will include within the agreement where issues are unable to be resolved at a workplace level. A model dispute resolution clause is provided for under section 737 of the Fair Work Act 2009 and Schedule 6.1 of the Fair Work Regulation 2009 .

If parties seek that a Member or Members of the New South Wales Industrial Relations Commission provide the forum for that dispute resolution process they would need to include a clause within the agreement to that effect. For example,
      If an agreement is not reached about the grievance or dispute, and the grievance or dispute remains outstanding, the disagreement shall be settled or resolved by a person who is a Member of the Industrial Commission of New South Wales ('the Commission') in the exercise of the powers and functions conferred by s 146B of the Industrial Relations Act 1996 ('the IR Act').

The Commission's functions
    o Under s146B(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 the federal enterprise agreement concerned and the federal Act ( Note: federal enterprise agreement includes a preserved state agreement where the nominal term has not expired and includes any workplace agreement under the former Workplace Relations Act 1996 that is still in force).

The parties to an 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:
    The person … shall first attempt to resolve the dispute or grievance by conciliation. In doing so, the person may require the attendance of any party to the agreement or request the attendance of any other person and exercise any of the powers and discharge the functions as specified in s 134 of the IR Act; If the dispute or grievance is not resolved by conciliation, any remaining disagreement shall be resolved and determined by arbitration.

Effect of Commission's 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:
    Subject to any rights of appeal provided for in this agreement, the determination by arbitration shall be final and binding on the parties to this agreement and any person bound by the agreement.

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 an agreement. Such an agreement might, for example, provide:
    The parties to the arbitration may appeal any decision and determination made in accordance with this agreement. Such an appeal shall be conducted before three persons who are Members of the Commission who are selected by the President of the Commission or, in his absence, the Vice-President of the Commission who shall constitute a 'Full Bench' within the meaning of that expression in the IR Act. The appeal shall be conducted in accordance with the terms of Pt 7 of Ch 4 of the IR Act, so far as those provisions would apply to an appeal from a decision or order made under s 136 of that Act.

Commission's Model Clause

The Commission has drafted a model clause that incorporates all the various elements necessary. Parties may amend to suit their particular requirements, however, the Commission would recommend that at least the preamble and clauses 1 - 3 and 6 - 9 be used to ensure that parties are able to maintain maximum benefit by having a member of the Commission conduct the dispute resolution.

Model Clause

If an agreement is not reached about the grievance or dispute, and the grievance or dispute remains outstanding, the disagreement shall be settled or resolved by a person who is a Member of the Industrial Commission of New South Wales ('the Commission') in the exercise of the powers and functions conferred by s 146B of the Industrial Relations Act 1996 ('the IR Act'), in accordance with the following:

    1. A party or the parties to this agreement shall notify the Industrial Registry established under the IR Act in Sydney or, in the case of a regional dispute, in Newcastle or Wollongong, as applicable, of the existence of a dispute or grievance, and that the final stage of this dispute settlement procedure is being invoked in accordance with the terms of this agreement;
    2. In the case of each dispute or grievance notified, the person dealing with the dispute or grievance shall be selected by the President of the Commission or, in his absence or upon his nomination, the Vice-President of the Commission;
    3. The person, so selected, shall first attempt to resolve the dispute or grievance by conciliation. In doing so, the person may require the attendance of any party to the agreement or request the attendance of any other person and exercise any of the powers and discharge the functions as specified in s 134 of the IR Act;
    4. If the dispute or grievance is not resolved by conciliation, any remaining disagreement shall be resolved and determined by arbitration. Subject to the appeal provided for in sub-clause 5, the determination by arbitration shall be final and binding on the parties to this agreement and any person bound by the agreement;
    5. The parties to the arbitration may appeal any decision and determination made in accordance with sub-clause 4 above. Such an appeal shall be conducted before three persons who are Members of the Commission who are selected by the President of the Commission or, in his absence, the Vice-President of the Commission who shall constitute a 'Full Bench' within the meaning of that expression in the IR Act. The appeal shall be conducted in accordance with the terms of Pt 7 of Ch 4 of the IR Act, so far as those provisions would apply to an appeal from a decision or order made under s 136 of that Act;
    6. The President may select different persons, Members of the Commission, to conduct the conciliation and/or arbitration. However, the same person will normally conduct both the conciliation and arbitration;
    7. Without limiting the powers and functions conferred by the foregoing provisions, the following powers and functions may be exercised by the person selected to conciliate and/or arbitrate:

      (i) Settle any dispute or grievance about a matter referred to in s 186(6)(a) of the Fair Work Act 2009 ('the FW Act');

      (ii) Adopt any procedure and exercise any power referred to or specified in Pt 5 of Ch 4 of the IR Act;

      (iii) Resolve any dispute or grievance over the making of a new agreement (provided that any conciliation or arbitration about that matter shall not occur earlier than six months before the expiry of this agreement and the resolution of any such issue shall not result in any change in this agreement before its expiry); and

      (iv) Make a recommendation that any industrial action including a strike or lock-out cease before any conciliation and/or arbitration is carried out by the person;

    8. Employees may be represented at any stage of, or in any part of,
    the above process by their union or unions or otherwise as approved by the person settling or resolving the dispute or grievance.

    9. The exercise of any power or function under this clause is subject to the requirements of s 740(4) of the FW Act.

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 to have a Dispute Settlement Procedure conducted .

Who will deal with the application?

In the case of each dispute or grievance notified, the person dealing with the dispute or grievance shall be selected by the President of the Commission or, in his absence or upon his nomination, the Vice-President of the Commission

Practice Note
The Commission has issued Practice Note 26 to facilitate dispute settlement procedures.




Industrial Registrar