14 July 2015

An object of the Industrial Relations Act 1996 is the encouragement and facilitation of "cooperative workplace reform and equitable, innovative and productive workplace relations" (s 3(h)).

Chapter 3 of the Act provides mechanisms for the resolution of industrial disputes upon their notification to the Industrial Relations Commission of New South Wales ('the Commission') or by the Commission acting of its own initiative. An industrial dispute is defined under the Act as "a dispute (including a question or difficulty) about an industrial matter" and includes "a situation that is likely to give rise to an industrial dispute if preventative action is not taken" (paragraph (c) of the definition of 'industrial dispute' in Sch 5, Dictionary).

Situations that are likely to give rise to an industrial dispute vary greatly between industries, enterprises and workplaces. They may be affected by cultural factors, historical unresolved grievances or issues or temporal considerations such as the proximity to bargaining for enterprise agreements or awards. However, employment relationships, particularly those of a collective nature, which are characterised by collaborative arrangements based upon mutual and reciprocal cooperation or cooperative endeavour and/or mutual recognition are more likely to avoid disputative relations and create an harmonious work environment.

Over many years, the Commission has encouraged and brought about innovation in industrial relations and, in particular, in dispute resolution. The 'Bluescope arbitration' process and interest based bargaining associated with the 'Hunter model' are recent examples.

The success of, and increased interest in, these methods has led to the conclusion that the further facilitation or promotion of cooperative and collaborative workplace relations or partnerships by the Commission will improve its capacity to prevent or resolve industrial disputes with long term, positive and sustainable outcomes. It will also meet other objectives of the Act such as the development of productive workplace relations and the prevention of situations that could lead to industrial disputes.

The Commission wishes, therefore, to encourage the parties to avail themselves of interest based approaches as far as possible. An increased emphasis on the objective referred to in the previous paragraph as a component of the regular work of its members and, where applicable, in its interaction with industrial parties is a key component of this approach.

As to the practical application of this approach, the role of the Commission may be illustrated, non-exhaustively, by the following three examples. First, the Commission may engage with stakeholders at various levels, ranging from peak to localised, in order to discuss processes for the introduction of cooperative workplace measures. Secondly, the Commission may assist parties by facilitating the establishment and maintenance of workplace partnerships for particular projects. Thirdly, the Commission may become involved, at an early stage, in anticipation of future enterprise agreement or award negotiations (independent of claims and counterclaims). The third illustration may result, at some later stage, in interest based bargaining.

In all such cases, the President of the Commission should be consulted about an intention to invoke cooperative employment relations' processes with a view to considering appropriate arrangements and, where applicable, resource allocation. Such approaches should be made in writing to Mr James Wiseman, Industrial Registrar, via However, given the present statutory scheme, in order to ultimately obtain the assistance of the Commission, the person(s) or entity(ies) consulting with the President would need to notify the existence of an industrial dispute (with such notification specifying, in a covering letter to the Industrial Registrar, that the matter concerns cooperative employment relations' process). The matter will then act as the foundation for the informal processes which would normally follow before the Commission.

When, in the course of an existing matter, these processes are invoked by the parties, the President and Industrial Registrar will be advised by the member of the Commission accordingly.