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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Employment Dispute Resolution Bill 2007
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Terms used in this Act 2
Part 2 -- Dispute resolution services
Division 1 -- Mediation
4. Extended meaning of "employment dispute" 4
5. Constitution of IR Commission 4
6. Mediation by IR Commission 4
7. Request for mediation 4
8. Representative of group 5
9. IR Commission may refuse to act or suspend or
discontinue mediation 5
10. IR Commission's functions 5
11. Mediation settlement agreement 6
Division 2 -- Resolution under referral
agreement
12. Referral agreements 7
13. Referral to IR Commission to perform certain
functions in referral agreement 8
14. Constitution of IR Commission 9
15. IR Commission's functions 9
16. IR Commission may determine scope of referral
agreement 10
17. Representation 10
18. IR Commission may register agreement in relation
to dispute 11
239--2 page i
Employment Dispute Resolution Bill 2007
Contents
19. Decision, direction or determination of IR
Commission may bind parties 11
20. Enforcement of decisions and directions 11
21. IR Commission may refuse to act or suspend or
discontinue referral 12
22. Appeals 12
23. IR Commission must publish examples of dispute
resolution functions 12
Division 3 -- Provisions that relate to mediation
and referral proceedings
24. Privilege 13
25. Privacy 14
Division 4 -- Resolution under Commonwealth
workplace agreement or model dispute
resolution process
26. Terms used in this Division 15
27. Application for IR Commission to conduct dispute
resolution process 15
28. Constitution of IR Commission 16
29. IR Commission's functions 17
Part 3 -- Miscellaneous
30. Application of IR Act 18
31. Regulations 18
Defined Terms
page ii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
Employment Dispute Resolution Bill 2007
A Bill for
An Act to establish a dispute resolution framework for employment
disputes.
The Parliament of Western Australia enacts as follows:
page 1
Employment Dispute Resolution Bill 2007
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This is the Employment Dispute Resolution Act 2007.
2. Commencement
5 This Act comes into operation as follows:
(a) sections 1 and 2 -- on the day on which this Act
receives the Royal Assent;
(b) the rest of the Act -- on a day fixed by proclamation,
and different days may be fixed for different provisions.
10 3. Terms used in this Act
(1) In this Act, unless the context otherwise requires --
"Chief Commissioner" means the Chief Commissioner under
the IR Act, and includes an acting Chief Commissioner;
"commissioner" means a commissioner appointed under the
15 IR Act and includes the Chief Commissioner, the Senior
Commissioner and an acting commissioner under that Act;
"Commonwealth workplace agreement" means a workplace
agreement as defined in the Workplace Relations Act or
any other agreement or arrangement prescribed under the
20 IR Act section 113 for the purposes of this definition;
"decision" includes an order, declaration or finding;
"employee" has the meaning given in the IR Act section 7;
"employer" has the meaning given in the IR Act section 7;
"employment dispute" means any question, dispute or
25 difficulty that arises out of or in the course of employment,
and includes any industrial matter;
"industrial matter" has the meaning given in the IR Act
section 7;
"IR Act" means the Industrial Relations Act 1979;
page 2
Employment Dispute Resolution Bill 2007
Preliminary Part 1
s. 3
"IR Commission" means The Western Australian Industrial
Relations Commission continued and constituted under the
IR Act;
"mediation" means mediation under Part 2 Division 1;
5 "mediation settlement agreement" means an agreement
registered under section 11;
"organisation" means --
(a) an organisation that is registered under the IR Act
Part II Division 4; or
10 (b) an organisation as defined in the Workplace
Relations Act section 4;
"referral agreement" has the meaning given in section 12(1);
"referral proceeding" means a proceeding in relation to a
referral under Part 2 Division 2;
15 "Workplace Relations Act" means the Workplace Relations
Act 1996 of the Commonwealth.
(2) A matter relating to --
(a) the dismissal of an employee by an employer; or
(b) the refusal or failure of an employer to allow an
20 employee a benefit under the employee's contract of
employment,
is and remains an employment dispute for the purposes of this
Act even though the relationship as employee and employer has
ended.
page 3
Employment Dispute Resolution Bill 2007
Part 2 Dispute resolution services
Division 1 Mediation
s. 4
Part 2 -- Dispute resolution services
Division 1 -- Mediation
4. Extended meaning of "employment dispute"
In this Division --
5 "employment dispute" includes a potential employment
dispute.
5. Constitution of IR Commission
For the purposes of this Division and despite the IR Act
section 25, the IR Commission is to be constituted by as many
10 commissioners as the Chief Commissioner sees fit to assign
under the IR Act section 16.
6. Mediation by IR Commission
(1) The IR Commission may act as mediator in an employment
dispute, whether or not it is within the jurisdiction of the
15 IR Commission under the IR Act, on a request in accordance
with section 7.
(2) The IR Commission must not act as mediator unless the
IR Commission is satisfied that each of the parties involved in
the employment dispute, or each of the parties that is likely to
20 be involved in the potential employment dispute, has consented
to the IR Commission acting as mediator.
7. Request for mediation
(1) For the purposes of section 6(1), a request may be made by any
of the following parties --
25 (a) an employee;
(b) a group of employees;
(c) an employer;
(d) a group of employers;
page 4
Employment Dispute Resolution Bill 2007
Dispute resolution services Part 2
Mediation Division 1
s. 8
(e) an organisation of employees or employers.
(2) The request must be made in a manner and form approved in
writing by the Chief Commissioner.
8. Representative of group
5 (1) Where a request is made by a group of employees or a group of
employers, the group may be represented by a person who is
appointed by the group to act on its behalf for the purposes of
this Division.
(2) The appointment must be made in a manner and form approved
10 in writing by the Chief Commissioner.
9. IR Commission may refuse to act or suspend or discontinue
mediation
The IR Commission may, at any time after a request has been
made for the purposes of section 6(1), decide to take no action
15 on the request, or to suspend or discontinue any mediation
commenced on the request, if the IR Commission is of the
opinion that --
(a) the employment dispute that is the subject of the request
should be resolved in some other manner; or
20 (b) proceedings that relate to the subject matter of the
employment dispute have been commenced under
another law of the State or the Commonwealth; or
(c) there is some other reasonable cause that justifies a
decision not to proceed with, or to suspend or
25 discontinue, the mediation.
10. IR Commission's functions
(1) The IR Commission may take such action as is appropriate to
assist the parties to resolve the employment dispute.
(2) The IR Commission does not have power under this Division --
30 (a) to compel a person to do anything; or
page 5
Employment Dispute Resolution Bill 2007
Part 2 Dispute resolution services
Division 1 Mediation
s. 11
(b) to arbitrate the employment dispute; or
(c) to otherwise determine the rights or obligations of a
party to the employment dispute; or
(d) to make a decision in relation to the employment
5 dispute.
(3) The IR Commission --
(a) must have regard to any request of a party made to the
IR Commission; and
(b) subject to subsection (2), if the IR Commission is of the
10 opinion that compliance with the request is practicable
and consistent with resolving the employment dispute in
an expeditious, convenient and informal way, must
endeavour to comply with the request.
(4) If the parties request the IR Commission to make
15 recommendations about particular aspects of the employment
dispute about which they are unable to reach agreement, the
IR Commission may make recommendations about those
aspects of the employment dispute.
11. Mediation settlement agreement
20 (1) If agreement is reached between the parties or any of them in
relation to the employment dispute or any aspect of the
employment dispute, the IR Commission may, with the consent
of the parties, register the agreement as a mediation settlement
agreement.
25 (2) A mediation settlement agreement is binding on the parties to
the agreement and may be enforced under the IR Act as if the
agreement were an industrial agreement under that Act.
(3) A mediation settlement agreement cannot vary the operation of
an existing award, order or industrial agreement under the
30 IR Act.
(4) Except as provided in subsection (2), the parties to a mediation
settlement agreement must not make a claim under any written
law in respect of an employment dispute, or an aspect of an
page 6
Employment Dispute Resolution Bill 2007
Dispute resolution services Part 2
Resolution under referral agreement Division 2
s. 12
employment dispute, that is the subject of the mediation
settlement agreement.
Division 2 -- Resolution under referral agreement
12. Referral agreements
5 (1) Two or more parties may enter into an agreement in writing (a
"referral agreement") that a particular employment dispute, or
employment disputes of a particular class, between the parties
may be resolved by the IR Commission.
(2) The parties to a referral agreement may be --
10 (a) an employer or group of employers; or
(b) an employee or group of employees; or
(c) an organisation of employees; or
(d) an organisation of employers.
(3) The referral agreement may specify circumstances in which an
15 individual is entitled to act on behalf of a group of employees or
group of employers.
(4) The referral agreement may specify the functions that may be
performed by the IR Commission in relation to any employment
dispute or class of employment dispute to which the referral
20 agreement relates.
(5) Without limiting subsection (4), the functions of the
IR Commission may include any of the following --
(a) mediating or conciliating the employment dispute;
(b) arbitrating the employment dispute;
25 (c) providing a remedy or other relief of the kind that may
be provided under the IR Act Part II Division 2;
(d) deciding any other issue or question arising in the
employment dispute.
page 7
Employment Dispute Resolution Bill 2007
Part 2 Dispute resolution services
Division 2 Resolution under referral agreement
s. 13
(6) A referral agreement --
(a) comes into force --
(i) if a commencement date is specified in the
agreement -- on that date; or
5 (ii) otherwise -- on the date on which it is made;
and
(b) remains in force until --
(i) if an expiry date is specified in the agreement but
all the parties agree to withdraw from the
10 agreement prior to that date -- the date on which
the parties agree to withdraw; or
(ii) if an expiry date is specified in the agreement
and subparagraph (i) does not apply -- that
expiry date; or
15 (iii) otherwise -- the third anniversary of the date on
which the agreement came into force.
(7) The expiry of a referral agreement does not affect a referral
proceeding commenced under that agreement before the expiry.
(8) A party cannot withdraw from a referral agreement without the
20 agreement in writing of the other party or parties to the
agreement.
13. Referral to IR Commission to perform certain functions in
referral agreement
(1) A party to a referral agreement, or a member of a group of
25 employers or employees that is a party to a referral agreement,
may refer an employment dispute to the IR Commission for the
performance by the IR Commission of such functions as are
specified in the referral agreement.
(2) The referral must be in a form approved in writing by the Chief
30 Commissioner.
page 8
Employment Dispute Resolution Bill 2007
Dispute resolution services Part 2
Resolution under referral agreement Division 2
s. 14
(3) A party who makes a referral can withdraw the referral at any
time.
14. Constitution of IR Commission
(1) For the purposes of this Division the IR Commission is to be
5 constituted by a single commissioner.
(2) Despite subsection (1), the IR Commission may be constituted
by more than one commissioner if --
(a) the terms of the relevant referral agreement so require;
or
10 (b) the terms of the relevant referral agreement so permit
and the parties to the referral so request,
and the Chief Commissioner is of the opinion that it is
practicable and appropriate to so constitute the IR Commission.
(3) The Chief Commissioner is to have regard to the terms of the
15 referral agreement when assigning or appointing a
commissioner or commissioners to constitute the
IR Commission for the purposes of this Division but is not
obliged to comply with those terms.
15. IR Commission's functions
20 (1) If a referral is made under section 13(1), the IR Commission
may --
(a) perform the functions that are specified in the referral
agreement, and any other functions that the parties agree
may be performed by the IR Commission or that in the
25 opinion of the IR Commission are consistent with the
functions specified in the referral agreement; and
(b) allow the referral agreement or the referral to be
amended on such terms as are agreed to by the parties;
and
page 9
Employment Dispute Resolution Bill 2007
Part 2 Dispute resolution services
Division 2 Resolution under referral agreement
s. 16
(c) unless specifically excluded in the referral agreement
exercise the powers set out in the IR Act
section 27(1)(b), (e), (f), (h), (ha), (hb), (m) and (v).
(2) Unless specifically excluded in the referral agreement, the
5 IR Act sections 22B and 26(1)(a) and (b) apply in the
performance of the IR Commission's functions under this
Division.
(3) The IR Commission --
(a) must have regard to any request of a party made to the
10 IR Commission; and
(b) if the IR Commission is of the opinion that compliance
with the request is practicable and consistent with
resolving the employment dispute in an expeditious,
convenient and informal way, must endeavour to
15 comply with the request.
16. IR Commission may determine scope of referral agreement
(1) The IR Commission may make a determination as to either or
both of the following --
(a) the scope or operation of a referral agreement;
20 (b) the meaning of any provision of a referral agreement.
(2) A determination under subsection (1) is binding on the parties to
the referral agreement and has effect according to its terms.
17. Representation
A party to a referral proceeding --
25 (a) may appear in person; or
(b) if the party is a body corporate, may be represented by a
director, secretary or other officer of the body corporate;
or
(c) may be represented as provided in the referral agreement
30 or, if no provision for representation is made in the
referral agreement, as the parties agree.
page 10
Employment Dispute Resolution Bill 2007
Dispute resolution services Part 2
Resolution under referral agreement Division 2
s. 18
18. IR Commission may register agreement in relation to
dispute
(1) If agreement is reached between the parties or any of them in
relation to the employment dispute or any aspect of the
5 employment dispute, the IR Commission may, with the consent
of the parties --
(a) make an order in the terms of that agreement binding on
those parties that have consented to the making of the
order; or
10 (b) where the nature or subject matter of the agreement does
not, in the opinion of the IR Commission, require that an
order in terms of the agreement be made, make, sign,
and file a memorandum of the terms of the agreement.
(2) An order made under subsection (1)(a) may vary the operation
15 of an existing award, order or industrial agreement under the IR
Act in respect of the parties referred to in subsection (1)(a).
19. Decision, direction or determination of IR Commission may
bind parties
A decision, direction or determination of the IR Commission,
20 other than a determination under section 16 or a decision under
section 18, does not bind the parties unless the referral
agreement provides for decisions, directions or determinations
of the IR Commission to bind the parties.
20. Enforcement of decisions and directions
25 Subject to regulations referred to in section 31(2)(b)(ii), a
decision or direction of the IR Commission given under this
Division that binds the parties may be enforced under the IR Act
section 84A as if it were a decision or direction given under the
IR Act section 32.
page 11
Employment Dispute Resolution Bill 2007
Part 2 Dispute resolution services
Division 2 Resolution under referral agreement
s. 21
21. IR Commission may refuse to act or suspend or discontinue
referral
The IR Commission may, at any time after a referral has been
made under section 13(1), decide to take no action on the
5 referral, or to suspend or discontinue any action on the referral,
if the IR Commission is of the opinion that --
(a) the employment dispute that is the subject of the referral
should be resolved in some other manner; or
(b) proceedings that relate to the subject matter of the
10 referral have been commenced under another law of the
State or the Commonwealth; or
(c) there is some other reasonable cause that justifies a
decision not to proceed with, or to suspend or
discontinue, the referral.
15 22. Appeals
(1) A party may not appeal against a decision of the IR Commission
made pursuant to a referral under this Division unless the
relevant referral agreement provides that the party may appeal
against such a decision.
20 (2) If a referral agreement provides that a party may appeal against
a decision made pursuant to a referral under this Division, the
IR Act section 49 applies as if the decision were a decision
under that Act.
23. IR Commission must publish examples of dispute resolution
25 functions
(1) The IR Commission must cause examples of the functions that
may be performed by the IR Commission under a referral
agreement to be published on an internet website maintained by
the IR Commission or by other means approved by the Chief
30 Commissioner.
page 12
Employment Dispute Resolution Bill 2007
Dispute resolution services Part 2
Provisions that relate to mediation and referral proceedings Division 3
s. 24
(2) The publication of examples of functions does not limit the
functions the IR Commission may perform under a referral
agreement.
Division 3 -- Provisions that relate to mediation and
5 referral proceedings
24. Privilege
(1) Evidence of --
(a) anything said or done; or
(b) any communication, whether oral or written; or
10 (c) any admission made,
in the course of, or for the purpose of, attempting to settle an
employment dispute by mediation or a referral proceeding is to
be taken to be in confidence and is not admissible in any
proceedings before any court, tribunal or body unless
15 subsection (4) applies.
(2) Each of the following --
(a) a document prepared in the course of, or for the purpose
of, mediation or a referral proceeding;
(b) a copy of such a document;
20 (c) evidence of such a document,
is to be taken to be subject to a duty of confidence and is not
admissible in any proceedings before any court, tribunal or body
unless subsection (4) applies.
(3) Subsections (1) and (2) do not apply to a proceeding to enforce
25 a decision or direction of the IR Commission or a mediation
settlement agreement.
page 13
Employment Dispute Resolution Bill 2007
Part 2 Dispute resolution services
Division 3 Provisions that relate to mediation and referral proceedings
s. 25
(4) Evidence or a document referred to in subsection (1) or (2) is
admissible in proceedings if --
(a) the parties to the mediation or referral proceeding
consent to the admission of the evidence or document;
5 or
(b) there is a dispute in the proceedings as to whether the
parties to the mediation or referral proceeding entered
into a binding agreement settling all or any of their
differences and the evidence or document is relevant to
10 that dispute.
25. Privacy
(1) Mediation or a referral proceeding must be held in private and
the IR Commission may give directions as to persons who may
be present during the mediation or referral proceeding.
15 (2) The IR Commission may direct that --
(a) evidence given before the IR Commission in mediation
or a referral proceeding; or
(b) matters contained in documents lodged with the
IR Commission or received in evidence by the
20 IR Commission in mediation or a referral proceeding,
must not be published or disclosed, or must not be published or
disclosed except in the manner or to the persons specified by
order by the IR Commission.
(3) Subject to regulations referred to in section 31(2)(b)(ii), a
25 direction or order given under this section may be enforced
under the IR Act section 84A as if it were a direction or order
given under the IR Act section 32.
page 14
Employment Dispute Resolution Bill 2007
Dispute resolution services Part 2
Resolution under Commonwealth workplace agreement or Division 4
model dispute resolution process
s. 26
Division 4 -- Resolution under Commonwealth workplace
agreement or model dispute resolution process
26. Terms used in this Division
In this Division --
5 "dispute settlement procedures" has the meaning given in the
Workplace Relations Act section 353;
"model dispute resolution process" means the model dispute
resolution process set out in the Workplace Relations Act
Part 13 Division 2.
10 27. Application for IR Commission to conduct dispute
resolution process
(1) A party to an employment dispute may apply to the
IR Commission to have a dispute resolution process conducted
by the IR Commission in relation to the employment dispute if
15 the parties to the employment dispute --
(a) are bound by a Commonwealth workplace agreement;
and
(b) either of the following applies --
(i) the Commonwealth workplace agreement
20 authorises, permits or provides for the
IR Commission, or a member of the
IR Commission, to conduct a dispute resolution
process under dispute settlement procedures set
out in the agreement;
25 (ii) no dispute settlement procedures are set out in
the Commonwealth workplace agreement and
the parties to the employment dispute agree to
have a model dispute resolution process
conducted by the IR Commission.
30 (2) A party to an employment dispute may apply to the
IR Commission to have a model dispute resolution process
page 15
Employment Dispute Resolution Bill 2007
Part 2 Dispute resolution services
Division 4 Resolution under Commonwealth workplace agreement or
model dispute resolution process
s. 28
conducted by the IR Commission in relation to the employment
dispute if --
(a) the employment dispute is a dispute to which the model
dispute resolution process applies under the Workplace
5 Relations Act; and
(b) the parties to the employment dispute agree to have the
model dispute resolution process conducted by the
IR Commission.
28. Constitution of IR Commission
10 (1) For the purposes of this Division the IR Commission is to be
constituted by a single commissioner.
(2) Despite subsection (1), the IR Commission may be constituted
by more than one commissioner if --
(a) the terms of the relevant Commonwealth workplace
15 agreement so require; or
(b) the terms of the relevant Commonwealth workplace
agreement so permit and the parties to the agreement so
request,
and the Chief Commissioner is of the opinion that it is
20 practicable and appropriate to so constitute the IR Commission.
(3) The Chief Commissioner is to have regard to the terms of the
Commonwealth workplace agreement when assigning or
appointing a commissioner or commissioners to constitute the
IR Commission for the purposes of this Division but is not
25 obliged to comply with those terms.
page 16
Employment Dispute Resolution Bill 2007
Dispute resolution services Part 2
Resolution under Commonwealth workplace agreement or Division 4
model dispute resolution process
s. 29
29. IR Commission's functions
(1) On an application under section 27 in relation to an employment
dispute, the IR Commission has and may exercise such
functions with respect to the resolution of the dispute as are
5 conferred or imposed on it under --
(a) the Commonwealth workplace agreement concerned or
the model dispute resolution process, as the case may
be; and
(b) the Workplace Relations Act.
10 (2) The Workplace Relations Act sections 714, 715 and 716 apply
to a dispute resolution process conducted under this Division.
page 17
Employment Dispute Resolution Bill 2007
Part 3 Miscellaneous
s. 30
Part 3 -- Miscellaneous
30. Application of IR Act
(1) The functions conferred on the IR Commission under this Act
are in addition to, and do not derogate from, any function of the
5 IR Commission under the IR Act or any other written law.
(2) The IR Act sections 3, 16, 16A and 17 apply to and in relation
to this Act as if a reference in those sections to "this Act"
included a reference to this Act.
31. Regulations
10 (1) Regulations may be made under the IR Act section 113
prescribing any matter that is required or permitted by this Act
to be prescribed by the regulations, or that is necessary or
convenient to be prescribed for giving effect to the purposes of
this Act.
15 (2) Without limiting subsection (1), regulations may be made under
the IR Act --
(a) regulating the practice and procedure to be followed in
relation to any matter under this Act; and
(b) providing for or with respect to the application of the
20 provisions of the IR Act (with any modifications that are
prescribed) to --
(i) the performance of functions conferred or
imposed on the IR Commission under this Act;
and
25 (ii) the enforcement of directions and decisions of
the IR Commission under this Act that are
binding on parties.
page 18
Employment Dispute Resolution Bill 2007
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
Chief Commissioner ....................................................................................3(1)
commissioner...............................................................................................3(1)
Commonwealth workplace agreement ..........................................................3(1)
decision .......................................................................................................3(1)
dispute settlement procedures......................................................................... 26
employee .....................................................................................................3(1)
employer......................................................................................................3(1)
employment dispute ................................................................................. 3(1), 4
industrial matter ...........................................................................................3(1)
IR Act..........................................................................................................3(1)
IR Commission ............................................................................................3(1)
mediation.....................................................................................................3(1)
mediation settlement agreement....................................................................3(1)
model dispute resolution process .................................................................... 26
organisation .................................................................................................3(1)
referral agreement ..............................................................................3(1), 12(1)
referral proceeding.......................................................................................3(1)
Workplace Relations Act..............................................................................3(1)
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