Resolving a Dispute
If you become involved in a dispute at work, you may fall under the Fair Work Act 2009 (FW Act). It requires that all modern awards include a term which sets out a procedure for resolving disputes between employers and employees about any matter arising under the modern award and the National Employment Standards (NES).
When making an enterprise agreement, the FW Act requires the parties to include a dispute resolution clause. Enterprise agreements lodged with the Fair Work Commission without such a clause will not be approved. The dispute resolution clauses in enterprise agreements must provide a process to resolve any disputes. Disputes can either be referred to the Fair Work Commission or to an independent person.
There are specific rules in the FW Act regarding what the independent person may or may not consider in assisting to resolve the dispute.
Where a term in an award, an enterprise agreement or a contract of employment or other written agreement refers a dispute to an independent person (other than the Fair Work Commission):
- the person may, where agreed to by the parties, deal with the dispute via arbitration and make a binding decision about the dispute
- the person must not deal with a dispute if it is about whether an employer had reasonable business grounds to refuse a request by an employee for flexible working arrangements or for an extension of unpaid parental leave beyond 12 months unless provided for in a contract of employment, enterprise agreement or some other kind of written agreement that allows them to deal with the dispute
- generally, an independent third party can only assist the parties to resolve their dispute in accordance with the powers that are expressly conferred by the relevant clause of the award, agreement, or other written agreement.