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Definition - An industrial dispute is a disagreement over an issue or group of issues between an employer and its employees, which results in employees ceasing work.
Lockouts occur when employers close the entrance to a workplace and refuse admission to the workers.
Pickets are protests that take place outside the workplace, generally associated with a strike. Unionists stop the delivery of goods and try to stop the entry of non-union labour into the workplace
Strikes refer to situations in which workers withdraw their labour.
The types of strikes include the following:
• Sympathy strikes are those called in support of a group of workers already on strike.
• Rolling strikes occur over a period of time, in between working periods.
• Rotating and revolving strikes occur where workers at different locations take turns to strike.
• Political strikes involve employees taking strike action over political issues, against government policy or actions.
• Wildcat strikes are those that take place without union approval.
• Lightning strikes occur without an employer being notified.
• General strikes involve a large number of workers in different industries going on strike simultaneously.
• Stop-work meetings involve employees stopping work to hold a meeting on an industrial issue during work time
• Conflict is inevitable and disputes can be formal, informal, covert or overt
• All costly $$ to business as well as reputation
• Covert disputes are conflicts that are only recognised by the business itself
• Workplace conflicts can lead to absenteeism, low productivity, legal claims
• Common causes are remuneration, employment conditions, job security, health and safety
Key stakeholders
Key stakeholders
Employers - Use grievance procedures and negotiate agreements with employees to resolve disputes. Line managers are playing a much greater role today in resolving disputes
Employees - Use grievance procedures and negotiate agreements with employers, with or without unions, on a collective or individual basis
Trade Unions - Represent employees in disputes from the shop floor to the national level,negotiate with management, employers and associations, represent employees in tribunals
Anti discrimination - Work closely with the Australian Human Rights Commission and Workplace Gender Equality Agency to ensure that disputes about discrimination on the basis of age, colour, sex, disability,criminal record, political opinion, race or religion in the workplace are resolved through provision of information,investigation and conciliation. Can refer cases to Administrative Review Tribunal for determination.
Civil courts - Federal Court, state supreme courts.Enforce legislation.Handle common law actions.
Governments - Provide the institutions, policy and legislative framework for the resolution of conflict. Investigate breaches of legislation
Employers associations - Provide information and support to employers, assist in negotiations with unions, represent employers in tribunals
Industrial tribunals (FWC) -Interpret legislation. Make and supervise awards and agreements.Provide conciliation and arbitration for the resolution of disputes and unfair dismissal claims.
Human Rights Commission - Monitors and reviews how legislation relating to human rights is implemented.It can investigate and conciliate complaints about discrimination in employment opportunities or a person’s treatment in the workplace. Refers complaints of sex discrimination in awards and agreements for determination to the Federal Court
Before either party may take protected industrial action, there must also be proof that both parties have attempted to bargain in good faith.
Resolutions of Disputes
Resolutions of Disputes
Negotiation
Negotiation
Negotiation is a method of resolving disputes when discussions between the parties result in a compromise and a formal or informal agreement. This process can benefit the parties involved by increasing their knowledge of company policy, business’s objectives, workers’ concerns and issues involved in implementing change. Most Australian industrial disputes are resolved by resumption of work, with out negotiation, such as following a stop work meeting. This may later lead to an agreement change. Most other disputes are resolved by negotiation without the intervention of a third party. In such cases, employees return to work following industrial action for a predetermined period (such as after a 24-hour strike). Options available to the parties involved may be determined by the nature of the industrial agreement covering employees (federal/state) and the goals of the parties.
Mediation
Mediation
Mediation is the confidential discussion of issues in a non-threatening environment, in the presence of a neutral, objective third party. The third party may be independent and agreed on by key parties in a dispute, or a representative from a business, tribunal or government agency, such as the Fair Work Commission, the Australian Human Rights Commission (AHRC) or the Anti-Discrimination Board (in New South Wales). Mediation as an alternative dispute resolution technique is increasingly popular in Australia. It allows the parties to become empowered by resolving their own disputes, and it reduces the risk of disputes escalating and leading to expensive legal costs or industrial action. It is often required as the first step in the resolution of a dispute.
Grievance procedure
Grievance procedure
Grievance procedures are formal procedures, generally written into an award or agreement, that state agreed processes to resolve disputes in the workplace. Grievance procedures are useful in reducing the risk of an issue rapidly becoming a serious dispute. Most businesses have established a formal process, now required in modern awards and other agreements, by which issues can be handled.
Effective grievance procedures require a full description of the complaint to be made by the employee(s) with the complaint. The person the grievance is made against should be given details of the allegation and an opportunity to provide their views.
Involvement of courts and tribunals
Involvement of courts and tribunals
Conciliation and arbitration
Conciliation and arbitration
When a dispute has not been resolved through negotiation at the workplace, it may be referred to the Fair Work Commission, who will appoint a conciliation member to hear both sides of the dispute.
Conciliation is a process where a third party is involved in helping two other parties reach an agreement. The conciliation member calls a conference and attempts to help both sides reach an agreement. The member may require all parties to continue negotiations, reduce the ambit of the dispute or develop other strategies to resolve the dispute, then report back for another conference.
The Fair Work Commission
The Fair Work Commission
When a dispute is not resolved in the workplace, it may be referred to a third party, such as the Fair Work Commission, to assist with the resolution. The role of the Fair Work Commission is to ensure that the parties play by the rules of the Fair Work Act 2009. Clear rules provide certainty and consistency for all stakeholders. The Fair Work Commission’s role in resolving disputes includes:
• providing conciliation, mediation, recommendations and opinions to parties in disputes
• hearing and authorising applications for protected industrial action. For industrial action to be lawful it must be protected industrial action
• hearing, conciliating and making determinations on unfair dismissal claims
• suspension or termination of bargaining periods or protected action or unprotected action. This may occur where substantial harm may be done, or is imminent, to the parties involved or to a third party, the community or the economy. This is enforceable through orders in the courts.
The Fair Work Commission is empowered to deal with disputes relating to:
• disputes under the terms of an award or a collective or enterprise agreement
• bargaining disputes
• disputes arising under the general protections provisions.
Under the Fair Work Act, protection has been provided against adverse actions that may cause discrimination or disadvantage in the workplace. The aim of the act is to protect workplace rights, including the right to bargain freely and not to suffer from discrimination.
Orders are decisions that require employees or employers to carry out a direction from the tribunal. They may be inserted in awards or agreements
Common law action
Common law action
Common law action is open to any party involved in or affected by industrial action. Parties may make direct claims for damages caused by the parties taking the action, or for breach of contract resulting from such action. An employer may ask a state or territory supreme court or the Federal Court for an injunction or stop order to prevent unlawful interference with the employer’s trade or business, for example where a nuisance is created by a picket line. This option is not available if the action is a protected action during a bargaining period. Such action is costly and generally considered a ‘last resort’. Common law action in civil courts is also available to those on individual common law contracts of employment disputing matters not covered in legislation or relevant awards.
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