Industrial disputes

Industrial Disputes

The Commission is empowered to resolve industrial disputes by conciliation and, if necessary, by arbitration, in a prompt and fair manner with a minimum of legal technicality.

“Industrial disputes” are defined in the Industrial Relations Act 1996 (“Act”) as being disputes (including questions or difficulties) about matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry: see s 6 and the Dictionary.

A range of disputes may be notified to the Commission, including:

· under the Industrial Relations Act 1996 (“Act”):

o disputes filed under s 130 of the Act;

o disputes relating to contract determinations under s 332 of the Act;

o disputes over federal enterprise agreements under s 146B of the Act; and

· disputes under s 20 of the Entertainment Industry Act 2013.

Who can notify a dispute?

The parties who may notify the Commission of a dispute vary depending on its nature.

Section 130 of the Act - dispute about an industrial matter

Under s130 of the Act the following parties may notify the Commission of an industrial dispute:

(a) an industrial organisation of employees or employers,

(b) an employer who is or is likely to be affected by the dispute,

(d) a State peak council.

Individual employees may not notify the Commission of an industrial dispute under s 130.

Section 332 of the Act - dispute involving public vehicles or carriers

An association registered under Ch 6 of the Act, a bailor under a contract of carriage, or a principal contractor under a contract of carriage may notify a dispute if they become aware of an industrial dispute that might lead, or has led:

(a) to owners of public vehicles being in breach of contracts of bailment of those vehicles or refusing to enter into contracts of bailment of those vehicles, or

(b) to principal contractors under contracts of carriage being in breach of those contracts or persons refusing to enter into contracts of carriage as principal contractors, or

(d) to persons refusing to enter into contracts as bailees of public vehicles or as carriers under contracts of carriage.

Industrial disputes arising from the reorganisation of the business of a principal contractor which affects, or is likely to affect, the number of carriers used by the principal contractor or their remuneration may also be notified to the Commission under s 332.

Section 146B of the Act – disputes notified under the dispute resolution clause of federal enterprise agreements

A party to a federal agreement may notify a dispute to the Commission if the Commission is authorised or permitted to conduct the dispute resolution process under the procedures set out in the agreement.

Section 20 of the Entertainment Industry Act

Where a dispute arises between a performer and an entertainment industry representative or entertainment industry hirer the following parties may apply for the matter be heard by the Commission:

(a) the performer, or

(b) an industrial organisation acting on behalf of a performer.

How to notify a dispute

Notifying disputes under s 130 or s 332 of the Act

Parties may notify a dispute under s 130 or s 332 of the Act may be made by filing a Notification of an Industrial Dispute form with the Commission.

Urgent disputes may be notified to the Registrar orally. The person giving oral notification must provide the Registrar with written confirmation of the notification as soon as possible and promptly serve a copy of the notification, or the written confirmation, on the other parties to the dispute.

Notification of a s 130 or s 332 dispute may also be filed online using the Online Registry. While parties are still able to file a notification in person, by post, or via email for the time being, parties are strongly encouraged to use and gain familiarity with the Online Registry.

Notifying disputes under s 20 of the Entertainment Industry Act 2013

Parties may notify a dispute under s 20 of the Entertainment Industry Act 2013 by filing an Application re Dispute arising pursuant to section 20 of the Entertainment Industry Act 2013 form with the Commission.

Notification of disputes under s 20 of the Entertainment Industry Act 2013 can be filed in person, by post, or by email. For urgent disputes, applications may be made orally to the Registrar, including by telephone. The person making an application orally must provide written confirmation to the Registrar as soon as possible, and promptly serve the application or written confirmation on the other parties to the dispute.

Notifying disputes notified under the dispute resolution clause of federal enterprise agreements

Parties may notify a dispute under s 146B of the Act using an Application – s 146B of the Industrial Relations Act 1996 form.

Applications under s 146B of the Act must specify the federal enterprise agreement to which the application relates and include a copy of the federal enterprise agreement.

Notifying urgent disputes

In some cases, the party notifying the Commission of a dispute (“notifier”) will want the matter to be dealt with urgently. This may be the case, for example, when there is impending industrial action or where any delay may unduly prejudice the interests of either the employees or the employer.

A notifier will be required to explain why the dispute must be dealt with on an urgent basis. Preferably, this will be done in an affidavit, although it is recognised that the very urgency of the situation may sometimes prevent such a step. Whether in an affidavit or other form, the request for the matter to be dealt with urgently should accompany the notification.

It will be a matter for the Commission to determine whether the matter ought to be expedited.

The progress of a dispute

The Commission will usually deal with an industrial dispute in two stages: compulsory conference and, if required, arbitration.

Compulsory conference

The first stage in the resolution of an industrial dispute involves the convening of a compulsory conference before a Commissioner. The Commission will require the attendance of the parties to the dispute and attempt to resolve it through a process of conciliation. The purpose of conciliation is to try to resolve a claim by agreement without having to proceed to a formal, full hearing of the matter.

You can learn more about the conciliation process by reading the Commission’s Guide to Conciliation.

If the dispute is not resolved

If the dispute cannot be resolved in the compulsory conference, the Commissioner who convened the conference will issue a Certificate of Attempted Conciliation pursuant to s 135 of the Act. The Certificate confirms that reasonable attempts have been made to resolve the industrial dispute by conciliation. The issuing of the certificate enables the Commission to progress the dispute for determination by arbitration.

It is usual that at the conclusion of the compulsory conference, the Commissioner will make “directions”. These are in the nature of procedural orders required to prepare the matter for arbitration. They usually include a timetable under which the parties must exchange the evidence and other material on which they will rely at the arbitration. The date of the arbitration is often, but not always, determined at this time. If the matter is very urgent, it is possible that it will be arbitrated immediately following the compulsory conference. The parties to a dispute that is listed on an urgent basis should be prepared for this possibility.

Arbitration

An arbitration involves a hearing before a Commissioner, during which the parties will have the opportunity to present the evidence and arguments that they rely on in support of, or in opposition to, the relief sought by the notifier.

The Commission’s powers to make orders to resolve the dispute are set out in ss 136 and 137 of the Act.

A recent examination of the Commission’s powers can be found in Local Government Engineers’ Association of New South Wales v MidCoast Council (No 2) [2022] NSWIRComm 1069.