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TAFE Hunter Institute
BSBWRK509A Notes Pack 1
Manage Industrial Relations
BSBWRK509A
Notes Pack 2009
TAFE Hunter Institute
BSBWRK509A Notes Pack 2
Element 1 – Develop Industrial Relations Strategies and Policies
(Text Reference Understanding Australian Industrial Relations 7th Edition Alexander, Lewer and
Gahan. Pg 233-267.
Human Resources Management Strategies and Processes 6th Edition Nankervis, Compton and
Baird Pg 70 to 106.)
Overview
The management of an Organisation will need to determine what Industrial Relations Strategies,
Policies and Plans are required to optimize the organisation’s performance and assist it in
meeting its objectives. The way in which an organisation develops and implements these
strategies, policies and plans will depend upon a number of factors including organisation, size,
industry, industrial climate, union representation etc. Some organisations will have a
comprehensive pro-active formal planning process which looks forward 2-5 years, other
organisations may deal with industrial relations on an informal and reactive basis. Managers,
representing the interests of employers, influence the industrial relations environment within
organisations through their management practices and policies. They need to be accountable for
the effectiveness of the industrial relations policies of that organisation.
Key terms
Australian Workplace Agreements
AWAs individual agreements made between an employer and a single employee. An alternative
to common rule Awards, able to tailor terms and conditions for workers to link them to
productivity gains for the particular workplace or industry
Certified Workplace Agreements (Enterprise Agreement, Collective Agreement)
Collective agreements made directly between an employer and employees or between an
employer and a union(s). An alternative to common rule Awards, able to tailor terms and
conditions for workers to link them to productivity gains for the particular workplace or industry
Grievance procedure
A formal procedure that enables employees to know when and how to air their grievances.
PEST analysis
TAFE Hunter Institute
BSBWRK509A Notes Pack 3
An examination of the influence of Political, Economic, Social and Technological factors on an
organisation.
SWOT analysis
An examination of the impact that the Strengths and Weaknesses of an organisation, and the
Opportunities and Threats it faces, have on the organisation and its future directions.
1.1 Analyse strategic plans and operational plans to determine long term industrial
relations objectives.
Business Planning – Organisational goals and objectives
Most organisations will conduct business planning activities to identify the organisation's
strategic and operational plans for its long term objectives. Once this is established the
Management team can then develop and implement Industrial Relations strategies that will assist
the organisation in achieving this business plan.
The company’s goals, objectives, attitudes and philosophy will therefore directly influence the
industrial relations relationship and activities within organisations.
In order for a company to achieve its goals, it needs motivated and effective staff. An effective
management team not only possesses the ability to effectively manage, but also understands its
approach to industrial relations issues.
Management’s primary role is to obtain a certain level of physical/mental work effort from
employees. Management needs to ensure that employees are:
• performing the work they have been hired to do
• to the required standard
• at the required pace.
We need to think, therefore, about the organisation within its environment and industrial relations
in the context of managerial activity. The organisation’s industrial relations policy will reflect its
specific industrial relations needs and strategic goals.
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BSBWRK509A Notes Pack 4
Business Planning Activities
PEST analysis
Strategic and operational plans need to recognise the influences acting on the organisation – both
inside and outside its control. One way to identify these influences is through a PEST analysis.
A PEST analysis examines the following factors and their influence on their organisation:
1. Political
2. Economic
3. Social
4. Technological
Political factors may include legislation, such as EEO and anti-discrimination laws, the agenda of
the government, national (and international if applicable) government policies on interest rates,
employment rights, the position of the trade union and occupational health and safety.
Economic factors may include the influence of interest rates, the expectations and level of
confidence in the state of the economy, and the state of the market, whether expanding or
contracting.
Social factors may include the level of unionisation and other associated social, ethical or
religious pressures that may affect the operation of the organisation.
Technological factors may include the effect of technology on occupations and work patterns,
and training for work activities.
Think about the organisation for which you currently work. Do a PEST analysis for it
concentrating on the present environment within Australia. You only need to list the two most
important influences within each category.
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SWOT analysis
The other method used to analyse the environment and the organisation's position within it is a
SWOT analysis.
• Strengths – factors that enhance the organisation’s performance and reputation
• Weaknesses – factors that reduce the organisation’s performance and reputation
• Opportunities – factors that the company can use to expand or develop
• Threats – factors that may cause an organisation to decline.
1.2 Analyse existing industrial relations performance in relation to strategic industrial
relations objectives.
Industrial Relations Climate and Performance Indicators
Prior to determining the key components of an organisation’s industrial relations policy it is important to analyse the organisation’s existing industrial relations climate. This analysis can be completed by looking at a number of different performance indicators including:
• Industrial action taken
• Absenteeism
• Turnover
• Grievance Handling
• Labour costs
• Productivity
• Quality
• Performance against previous Industrial Relations Objectives
Another part of the analysis of the current environment could be qualitative, including gathering feedback from key stakeholders through surveys, group discussions or one on one meetings.
A model for assessing the industrial relations climate in the workplace is also included in your text – ‘Understanding Australian Industrial Relations on Pg 247.
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1.3 Evaluate options in terms of cost benefit, risk analysis and current legislative
requirements.
Cost Benefit Analysis
This analysis, as the name suggests, involves looking at a suggested course of action and listing
the benefits of this action and the costs of the action. The purpose is to make a decision on
whether to proceed with the course of action. You would proceed if you believe the action is
justified given the costs involved. Cost and benefits could be quantitative or qualitative. E.g.
Look at the cost of implementing a bonus payment system compared to the benefits it would
bring.
Risk Analysis
This involves drawing up a risk management plan to identify how likely an IR event (or some other event that will affect IR) will have a negative effect on the organisation achieving its objectives. What too would be the likely consequences on the organisation's performance?
Legislative Framework
The Industrial Relations and Legislative framework in Australia is constantly changing. A
challenge for organisations in to ensure their Industrial Relations plans are consistent and comply
with the current legislative and industrial relations framework.
Fair Work Australia
The current labour government has introduced new federal IR legislation titled ‘Fair Work
Australia’.
The following changes have occurred under the Workplace Relations Amendment (Transition to
Forward with Fairness) Act 2008.
• Award Modernisation has commenced.
• Public consultation on the 10 National Employment Standards (NES).
• Replaced old fairness test for workplace agreements with the no disadvantage test.
Fair Work Act 2009 Division 2 - The National Employment Standards
61 The National Employment Standards are minimum standards applying to employment of employees
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(1) This Part sets minimum standards that apply to the employment of employees which cannot be
displaced, even if an enterprise agreement includes terms of the kind referred to in subsection 55(5).
Note: Subsection 55(5) allows enterprise agreements to include terms that have the same (or substantially
the same) effect as provisions of the National Employment Standards.
(2) The minimum standards relate to the following matters:
(a) maximum weekly hours (Division 3);
(b) requests for flexible working arrangements (Division 4);
(c) parental leave and related entitlements (Division 5);
(d) annual leave (Division 6);
(e) personal/carer’s leave and compassionate leave (Division 7);
(f) community service leave (Division 8);
(g) long service leave (Division 9);
(h) public holidays (Division 10);
(i) notice of termination and redundancy pay (Division 11);
(j) Fair Work Information Statement (Division 12).
Areas of the FWA organisations need to pay key attention to are:
• Unfair dismissal changes, particularly relating to redundancy and restructuring
• Transmission of business
• Refusal to bargain
• Good faith bargaining, protected action and arbitration
• Compulsory bargaining and arbitration for the low paid
• Injunctions to enforce awards and enterprise agreements
• Award Modernisation
• Increased right of entry powers by unions
1.4 Establish industrial relations strategies/policies with the management team.
Once the organisation has developed its Business Plan and has assessed its current Industrial
Relations climate it is time to develop and implement IR Policies, initiatives, practices to support
this.
Industrial Relations Policy
An Industrial Relations policy is normally a document or statement outlining the approach the organisation will take to industrial relations. It usually states the overall purpose and objective and provide details of the steps the organisation will take to achieve this purpose.
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Below is an example of an organisation’s industrial relations policy. Four important aspects have
been identified:
1. Communication
2. Involvement
3. Education
4. Planning
Communication
Communication is very important, as it allows for the free flowing of information between the
employer and employees. The employer should establish clear communication channels and
procedures. These channels may include formal memos or newsletters emailed to all staff.
Procedures may include a formal staff meeting attended once a month by the general manager.
Involvement
All staff need the opportunity to become involved in the organisation. This may be through
committees, such as a health and safety committee, or through special committees formed to
discuss the implementation of proposed changes that will directly affect them.
Education
In order for the organisation to achieve its strategic and industrial relations goals, it needs to
provide its staff with the opportunity to access training and professional development. Staff
should be encouraged to complete training, and they should be rewarded for their efforts – either
through the possibility of career progression, or through recognition of their achievements via job
enhancement programs.
Planning
Planning is required to deal effectively with any industrial relation issues that may arise within
the organisation. Planning is usually undertaken either by the industrial relations specialist within
the organisation or a senior member of the HR/management team. It is important to have policies
and procedures in place to effectively deal with issues such as grievances and industrial conflict.
Today, many organisations realise the need to tie their industrial relations strategies into their
operational plans and activities. Employers realise that in order to more effectively achieve their
organisation’s strategic goals they need a committed workforce who can see the benefits of
cooperating with their employers.
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BSBWRK509A Notes Pack 9
Industrial Relations Strategies
An organisation will normally identify a number of industrial relations strategies, which are long terms plans and objectives. They will state what it is an organisation is trying to achieve.
Examples could include:
• Reduce industrial action.
• Be an employer of choice.
• Increase productivity.
• Reduce absenteeism.
• Increase employee morale.
Industrial Relations Plan
An industrial relations plan provides more specific information on the steps that will be taken in support of the organisation’s Industrial Relations Policy and Strategies. It will identify specific actions and activities, allocate these responsibilities to a dedicated resource and indicate timeframes for completion. These actions might be one off projects (e.g. implement flexible working policy) or activities that will occur on a regular ongoing basis (e.g. consultative committee meetings). Organisations will normally develop these plans on an annual basis and constantly review them throughout the year. The plan therefore states ‘how’ the organisation is going to achieve the strategies.
Example – Model Industrial Relations Plan
Industrial Relations Plans spell out clearly:
• Column 1 The areas addressed by the plan
• Column 2 The actions to be taken within that area of the plan
• Column 3 The person responsible to complete this action i.e. the Responsible Officer
• Column 4 The date required for action to be completed.
• Column 5 Evaluation of the action.
Table 1: Industrial Relations Plan showing area, action, responsible officer, completion date and
evaluation (5 cols)
Area Actions Responsible
Officer
Completion Date Evaluation
In-house
Communication
1. Monthly staff
newsletter
Human
Resources
All three
commenced by
1. All actions
implemented by
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Area Actions Responsible
Officer
Completion Date Evaluation
2. Weekly email
bulletins
3. Daily toolbox
meetings
Manager 01/07/0X due date
2. All actions
completed daily,
weekly and
monthly as
required
3. Feedback
from all
stakeholders is
positive
Consultative
Committee
1. Consultative
committee
nominations from
staff and
management
2. Committee
created
3. Constitution
agreed upon
4. Meeting
schedule agreed
5. Meetings
commence and
conducted
regularly
Human
Resources
Manager
1. Nominations
called and
received by
01/07/0X
2. Voting
completed if
necessary by
08/07/0X
3. Committee
convened by
15/07/0X
4. Constitution
agreed 29/05/0X
5. Meeting
schedule agreed
29/05/0X
1. All actions
implemented by
due date
2. Meetings
conducted
regularly and to
schedule
3. Feedback
from members
of committee,
staff and
management is
positive
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BSBWRK509A Notes Pack 11
Area Actions Responsible
Officer
Completion Date Evaluation
Negotiate
Industrial
Agreement
1. Management
to draft outcomes
required of the
agreement
2. Management
‘costs’ agreement
3. Inform staff
and unions of
desire to create
industrial
agreements
4. Negotiate
with staff
5. Reach
agreement
6. Distribute to
all staff in
community
languages
7. Sign
agreement with
cooling-off
period
8. Ongoing
evaluation of
outcomes
Human
Resources
Manager
1. Draft
outcomes by
01/07/0X
2. Costs
calculated by
05/07/0X
3. Inform staff
of negotiations
by 12/07/0X
4. Commence
negotiations by
19/07/0X
5. Reach
agreement by
31/08/0X
6. Distribute to
staff by 05/09/0X
7. Finalise
agreement by
30/09/0X
1. Cost benefit
analysis
indicates
positive
outcomes
2. Negotiations
are amicable
3. Target dates
are met
4. Feedback
from
stakeholders is
positive
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Industrial Relations Initiatives
An initiative is an idea or action that has been identified because people believe it will help the
organisation meet its objectives, solve a problem, improve performance etc. Below are some
examples of initiatives an organisation might implement. These initiatives are normally
incorporated into the Industrial Relations Plan.
Example one
A company wants to increase performance within the workplace. To encourage productivity,
employees receive an annual salary supplemented by access to productivity and sales bonuses.
Access to these bonuses has increased employee motivation and performance, and has provided
increased productivity for the employers.
In this example the Industrial Relations Strategy is to increase performance within the workplace. The initiative is to implement productivity and sales bonuses.
Example two
A company operates seven days a week, 12 hours a day (7am to 7pm). An AWA was signed by
employers and employees, providing flexible work arrangements, which took into consideration
the business needs of the organisation, customer needs and employee preferences.
An employee had a specific need to set hours and days to meet with a TAFE timetable. The
employer was happy with this arrangement and was able to roster the employee to work at times
that had traditionally been hard to fill. In this instance, the employee was able to continue
studying whilst the employer was able to overcome rostering and staffing issues.
Both examples have been adapted from those contained in the www.employment.gov.au website.
There may be a number of signals that your business is ready to develop a formal workplace
agreement. These may include:
1. The organisation has developed formal strategic plans and goals for the medium-term.
2. It has become clear that certain award provisions are not flexible enough to suit the
organisation’s requirements.
3. The business has been experiencing specific problems, such as high turnover, high rates
of absenteeism or difficulty recruiting. These may be addressed through a more systematic and
formal approach to setting terms and conditions of employment.
4. You have identified that the organisation will benefit from establishing a clearly
documented system of rewards for its employees.
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1.5 Identify the knowledge and skills needed by Management and the workforce to
effectively implement these strategies/policies.
To ensure the successful implementation of your IR Policy, Plan and Strategies it is important to identify the knowledge and skills needed by Management and the workforce.
Example 1: If the IR Policy states that it would like to encourage communication between employees and management. Its Plan might state that they will establish a Consultative Committee. You may identify that Management and Consultative Committee members need training in effective communication and running meetings. You would also need to educate the rest of the workforce on the purpose of the Committee and what it is intended to achieve.
Example 2: If an IR initiative of a Company is to implement National Competency Standards it would be important to ensure the relevant people are trained in the National Competency Framework and the process for implementation.
Roles and Responsibilities
Each organisation will have difference processes, structures and resources for managing
workplace industrial relations. In general the two main internal resources an organisation may
utilise to manage industrial relations are management and industrial relations specialists.
Management: are fundamentally responsible for developing and implementing business
strategies and plans and managing employee relations on a day to day basis. Must ensure that
their actions comply with legislative requirements.
Industrial Relations Specialists: provide specialist advice and education to managers and
employees on legislation, policy and strategy development, resolving workplace conflict. This
role is usually part of the Human Resources team.
An organisation may also seek external assistance from employer associations and legal firms.
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Element 2 – Implement Industrial Relations Strategies and Policies
2.1 Develop an implementation plan and contingency plan for the industrial relations
strategies/policies.
Once you have developed the IR Policies and Strategies it is important to determine the best approach for the implementation. Things to consider are:
• How will you make people aware of the policies and strategies – e.g. communication meetings, email, intranet, procedure manuals, workshops.
• What is your timeframe for implementation? Do certain things need to happen before other items can be completed?
• Who will be responsible for implementing the plan?
• What specific training is required and when should it be done?
Once this has been decided it can be outlined in an Implementation Plan or Project Plan (similar format to the IR Plan outlined previously).
This plan may also identify the risks associated with implementing the plans and alternative courses of action should obstacles arise (e.g. contingency plan).
2.2 Make arrangements for training and development in accordance with identified needs,
to support the industrial relations plan.
In the planning process you should have identified the training required to successfully implement your plan. You will also have included this in your implementation plan. Now is the time to organise it. You will need to consider:
• Who will run the training.
• Where it will be held.
• Who needs to attend.
• Cost and timings.
• Objectives of the training – what form of training will be most effective e.g. classroom courses, one on one coaching, on the job training.
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2.3 Undertake associated industrial relations activities to agree to changes required by
policies or implementation plan.
Associated activities could include:
• clarification of terms and conditions of employment of those people affected.
• consultation with employee representatives
• obtaining legal or specialist advice
These activities may be included as part of the implementation plan.
2.4 Ensure procedures for addressing grievances and conflict are properly documented.
2.5 Communicate key issues about procedures for addressing grievances and conflict.
When implementing change in the workplace it is common to face objection, concerns and obstacles during the implementation process. You may also work out during implementation that an initiative or course of action may not be as successful as you originally thought.
It is therefore important to set up systems to address issues that may arise from the implementation of your IR Strategies and Policies. Grievance procedures is covered further on in your notes pack. By setting up these systems it will also give you the opportunity to collect feedback from your workforce on the changes being implemented.
By communicating these procedures to the workforce it allows them to understand how they can have their say and that their concerns will be duly considered and taken into account.
Tips for Successful Development and Implementation
It is one thing to be able to develop a sound Industrial Relations strategy, policy, plan, initiative it is more difficult to ensure it is successful implemented and supported by employees and management within the organisation.
It is therefore important that when developing and implementing any plan, strategy and initiative that adequate planning, consultation and education is done.
A key to successful implementation is to consult with employees and unions throughout this process. Consultation allows an organisation to gather valuable feedback and information and generate interest and ownership from employees and unions.
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Element 3 – Manage negotiations, conflict and disputes.
Overview
In Australia, most organisations adopt the pluralist approach to industrial relations where it is
recognised that conflict between employees and employers is inevitable due to differing views,
objectives and personalities of employees and employers. Workplace conflict can have a
negative affects on an organisation’s efficiency and productivity. The goal then is to ensure an
organisation has the right strategies, plans and policies in place to manage and resolve conflict in
the workplace.
Poorly managed conflicts and grievances can result increased levels of absenteeism, low worker
moral, reduced levels of productivity and a higher staff turnover. To manage conflict effectively,
the management team first requires the skills to identify potential grievances or conflicts.
Processes to resolve these issues must be in place and effective and it is important to have an
identified person or persons within the organisation to take responsibility for managing these
issues. A formal procedure must also be in place so employees know how and when to air their
grievances.
Key terms
Conciliation
A process of suggesting options for a solution or paths to a solution to solving a dispute.
Grievance procedure
A formal procedure that enables employees to know when and how to air their grievances.
Mediation
A process of negotiating a mutually agreed solution between parties involved in a dispute, where
the mediator is neutral and makes no proposals and provides no advice.
Procedural fairness
The process is fair.
Substantive fairness
The final decision is fair.
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3.1 Train individuals in conflict management techniques/procedures
There are a number of different conflict management techniques/procedures that people can use to resolve conflict in the workplace. Some of these methods are internal to an organisation and others are external and within the legal system. Some include:
• Internal Dispute Resolution Procedures
• Conciliation
• Mediation
• Negotiating
• Arbitration
It is important that you have people within the workplace who are trained in these techniques and procedures so conflict can be managed effectively when it arises. Organisations may nominate people within their organisation who will be responsible for conflict. Examples may include:
a) Managers
It is an inevitable part of any manager’s job that you will, at some time, need to resolve a conflict
situation in your workplace. You may face conflict with:
• differences between employees
• laying off key employees
• challenging customers
• motivating unproductive staff
• helping employees perform at a higher level.
There are a number of different ways that conflict is expressed within the workplace – it may be
through the use of strikes, an increased level of absenteeism, and increased levels in staff
turnover.
It becomes an important management skill to identify the potential conflict, and provide methods
for the early resolution of conflict, for example, through a grievance procedure. More
importantly, you need to possess the skills to manage these forms of conflict.. Managers are often
the first point of contact for someone with a grievance so it is important that they know what they
are doing.
b) Human Resources Practitioners/IR Specialists
The HR team will ordinarily be the area Managers and employees go to, to get specialist advice on how to manage conflict internally or externally. It is therefore important that members of the
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HR team have a strong understanding of the principles of conflict management and understand the avenues available under legislation to resolve conflict.
c) EEO Officers
Organisations may have dedicated EEO officers whose role is to manage any grievances related to potential discrimination or harassment. The people in these roles will need a good understanding of conflict management techniques as well as EEO legislation.
Conflict management skills
Conflict management skills include
• negotiating skills
• conciliation and mediation skills
• an awareness of controlling difficult situations using legal remedies
• knowledge of your own responsibilities
• who you need to notify
• the ability to work within specified time frames.
When you undergo conflict management training, you need to examine issues such as:
• understanding how conflict impacts on yourself and others
• encouraging the development of effective problem solving skills
• communication skills required to address conflict
• skills to resolve a dispute in a productive way
• legal avenues available to you, should the conflict escalate (eg industrial disputes).
Along with a formal grievance policy, conflict management training can concentrate on providing
employers with skills in conciliation and mediation. Both methods can be used to help resolve a
conflict or dispute between two parties.
A number of methods could be used to train individuals in conflict management techniques/procedures including:
• Classroom Courses
• Practical Workshops – case studies, scenarios and role plays
• One on one coaching
• Attending legal seminars
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3.2 Identify and where possible alleviate or eliminate, sources of conflict or grievance in
accordance with legal requirements.
Strategies to monitor the workplace so that conflict can be identified and resolved quickly
include:
• formal grievance policies and procedures
• effective communication channels
• effective relationships between employers and employees
• training and professional development for supervisors in effective conflict resolution
techniques.
Note that often workplace grievances and conflicts are not visible and raised directly with
management until late in the process. The later it is identified the harder it is to manage.
Types of industrial conflict
Industrial action
Strikes are the most visible form of conflict and create the most impact. The Australian
Workplace Relations Act 1996 recognises the legitimacy of industrial action during the course of
enterprise negotiations. In this instance, industrial action includes any worker activity that
restricts or delays work, such as:
• bans, where employees decide not to perform certain activities
• work-to-rule, where employees only perform the tasks that are stated within their job
description
• go-slow campaigns, where employees dramatically slow down the pace of their work.
Strategies to reduce industrial action include:
• developing a culture that encourages communication between employers and employees
• developing a formal, trusted grievance policy to help quickly identify grievances and
potential sources of conflict
• developing a more positive relationship between employers, employees and their
respective unions.
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Absenteeism
The most common way employees respond to unsatisfactory working conditions or a stressful
work environment is through absenteeism. A high level of absenteeism can cost the organisation
significantly. The two types of absenteeism are:
1. involuntary absenteeism, mostly due to illness
2. voluntary absenteeism, which may be due to a variety of reasons such as the individual’s
attitude to work, their personal level of job satisfaction or organisational issues, such as stress,
conflict, and the nature of their work.
Strategies to manage absenteeism include:
• allowing supervisors more flexibility and discretion in the absence of management
• providing opportunities to employees to multiskill or job enlarge
• providing opportunities for employee participation in areas such as decision-making, fair
treatment and job security
• improving communication between employers and employees so that employees
understand the tasks they are expected to do at work
• providing employees with a career path and promotional opportunities
• improving the relationship between management, unions and employees.
Strategies to address labour turnover
Labour turnover
Absenteeism and labour turnover are related, as they are both forms of withdrawal from the
organisation. Absenteeism is a temporary withdrawal while turnover is permanent. Often a
person’s dissatisfaction with his or her job begins with absenteeism, which progresses over time,
combined with an increasing sense of dissatisfaction, resulting in a decision to leave that
company.
1. encouraging organisational commitment through the use of reward and recognition
programs, career paths and reducing work-related stresses
2. providing applicants at their interview with a clear idea of what the job will involve
3. initiating methods to improve the level of job satisfaction through, for example, multi-
skilling and job enrichment
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4. providing competitive wages and benefits packages.
Ideally, for performance gaps to be closed, the concept of mutual commitment needs to be
implemented.
Grievances
Grievances arise in the workplace when one person believes they have been treated
inappropriately or unfairly by an action taken by another. Grievances might affect one individual
or a group of people.
There are 3 levels people evaluate fairness: (pg 285 Understanding Australian Industrial
Relations)
Distributive justice: are the rewards of the organisation distributed fairly (e.g. pay, bonuses).
Procedural justice: are decisions transparent and consistent with policies, procedures and
legislation?
Interactional justice: are people treated with respect and given the opportunity to express their
views?
Think
Within the organisation for which you currently work, or one for which you have been previously
employed, think of the methods that employees use to express their dissatisfaction with their job.
To be effective, formal grievance policies must be supported by both employers and employees.
They must resolve grievances within a specified time period, and all grievances must be taken
seriously. Matters must be dealt with in strict confidentiality and supervisors should be trained in
this.
Documented grievance procedures
Both Certified and Australian Workplace Agreements must contain a grievance procedure.
When preparing a grievance procedure, you must ensure that it is both procedurally and
substantively fair, in order to meet the legal requirements of both the state and federal Industrial
Relations Commissions.
Complaints provide a valuable opportunity to resolve potentially damaging conflicts and maintain
a productive workforce. Grievances should be handled sympathetically, seriously and sensitively.
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A person doesn’t get a fair hearing when their complaint is dismissed as trivial, time wasting or
ridiculous.
Legal responsibilities
To be effective and to meet employers’ legal responsibilities a grievance procedure must:
• be written down, easily understood and communicated to staff, taking into account any
special requirements (eg put on audio cassette, video or placed on the company’s website)
• be user-friendly and trusted by all parties
• state the time limit that grievances will be handled within
• state that all grievances will be handled fairly, confidentially and free of unfair repercussions
• provide a range of entry points so that everyone feels comfortable coming forward
• identify the steps to be taken, who will take them, and to solve the grievance at the lowest
level possible.
Grievance resolution strategies
For a grievance to be resolved, it is essential that those responsible for resolving it have the power
and skills to do so. Following are some strategies to achieve this:
1. Allow all parties to the grievance access to support (eg legal representation, counseling,
interpreters, union representation).
2. Set out the types of solutions which should be reached, and ensure that grievance solutions
are consistent.
3. Consider only the relevant information, especially where the grievance could result in
disciplinary action.
4. Specify where the records will be kept and who will have access to these.
5. Provide an internal appeal system, and provide information on external sources of advice,
should the person be dissatisfied with the internal grievance procedure or resolution.
Grievance outcomes
An effective grievance procedure should allow the following outcomes:
• a peaceful method of conflict resolution to reduce industrial action and provide greater
stability
• quick and effective results
• improved communications and working relationships
• employee participation and consultation in the workplace
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• increased productivity and efficiency of the organisation
• resolution of problems with workplace change programs
• better emotional wellbeing, performance and morale of employees
• avoidance of the costs and delays of going to the tribunal
• natural justice for employees.
Senior management support
It is important that the conflict management procedures developed and used within the
organisation have the full support of the senior management team. They must be seen to be
proactive in the area of ensuring that all grievances or conflicts are dealt with seriously by a
trained staff member.
The senior management team must lead the way by providing all of their staff, not just the
managers, with opportunities to access training and professional development in conflict
resolution procedures.
It is essential that the conflict management procedures are clearly communicated to all staff as
part of the overall procedure of implementation. The executive officer should, if possible, be the
person to communicate these new policies as part of the overall improvements made to the
organisation’s industrial relations policies and procedures.
It should be portrayed to all staff as a positive measure. They should also be made aware of how
they can access these policies both in their induction and through regular communications, such
as via written statements given to all staff with their pay slips, articles in a newsletter or through
the organisation’s website.
Union involvement
Often, when compiling the organisation’s conflict management procedures, the involvement of
the unions in either drafting the procedure or reviewing a working draft may ensure that they
support the conflict management process and help to ensure a future positive working
relationship.
Legal issues
The legal requirements of all procedures need to be examined by the company’s legal
representatives to ensure that they will stand up to close scrutiny, should an issue be taken to
either the AIRC or court.
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Think - In you own workplace, how do employees receive information about such things as
conflict management or grievance procedures? How are you kept informed about changes and
developments in the organisation? Could the manner of communication within the organisation
be improved and if so, how?
Avoiding or reducing conflict in the workplace
Grievance procedures are a reactive way to manage conflict in the workplace. An organisation can take some proactive steps to try and minimise the likelihood of conflict occurring or worsening in the workplace.
a) Effective communication channels
A variety of approaches can be taken to improve communication channels. These include:
• regular formal staff meetings
• an ‘open door’ policy, where all employees are confident that they can approach senior
managers at any time
• providing information to all employees on the latest happenings within their workplace
(eg via a newsletter given out with pay slips, or a company website).
b) Effective relationships between employers and employees
Creating effective relationships between employers and employees is a complex area and may
require changing the corporate culture of an organisation.
The idea is to improve relationships so that:
• conflicts or grievances can be more easily discussed
• employees feel more comfortable approaching their supervisor or another supervisor
about issues of concern
• employers are more easily able to identify potential sources of conflict or grievance
• morale among workers increases.
Training and professional development for supervisors in effective conflict resolution techniques
Conflict resolution is an important skill in today’s industrial relations environment. The focus is
now to resolve issues within the workplace, with referral to outside agencies, such as the
Australian Industrial Relations Commission (AIRC), only taking place in extreme circumstances.
Think
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Remember a time when there was potential for conflict in your workplace. What were the reasons
for this and how was it resolved? Was there anything you think could have been done differently?
3.3 Check documentation and other information sources to clarify issues in dispute.
It will often be necessary in a conflict situation to conduct an investigation into the matter.
An investigation could be carried out internally by a trained person or by an external
organisation. An external organisation may be used when the matter is quite serious and you
require an independent investigation to gather factual statements and evidence.
An investigation will aim to establish the facts and circumstances of the situation and usually lead
to a formal report being prepared.
An effective investigation procedure should be:
• Planned to ensure the investigation process is appropriate.
• Transparent – the investigation process and timeframes be outlined for all parties.
• Objective/impartial – the investigator should be unbiased and non-judgemental. In some
workplaces this may mean they need to be someone from outside the workplace.
• In line with the principles of natural justice, which are:
a. the person against whom the complaint is about is presumed to be innocent until
allegations are proved to be true
b. all allegations are investigated promptly
c. the person who the complaint has been received about is informed of all the
allegations and given an opportunity to explain his or her version of events
d. should the complaint be proven to be true, then remedial action must be taken.
• Documented – information from interviews and accurate records of evidence used to
establish facts should be kept. No assumptions or opinions should be included. Detailed
investigation notes are essential to demonstrate fair practices associated with the
investigation.
Example investigation process
• Review background documentation – policies, procedures, evidence already taken in
response to the complaint.
• Inform all parties of the process and timelines.
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• Compile questions for interviews.
• Interview complainant
• Interview respondent
• Interview other parties to the complaint.
• Obtain any corroborating evidence.
• Assess evidence.
• Prepare investigation report.
• Inform parties of outcomes of investigation.
• Implement actions.
What makes a good investigator?
• Has received training in investigating harassment complaints.
• Has comprehensive understanding of what constitutes workplace harassment.
• Is impartial, non judgemental and has no conflict of interest or personal association with
any person involved in the complaint.
• Abides by principles of natural justice and procedural fairness.
• Parties have confidence in the appropriateness of the investigator.
• Is able to listen, interview and communicate effectively.
• Explains the investigation process to all involved parties.
• Keeps involved parties informed and is available to answer questions.
• Develops and follows an investigation plan and establishes realistic timeframes.
• Has either comprehensive knowledge of the organisation’s policy, procedures and training
provided to workers, or access to this information.
• Maintains accurate documentation throughout the investigation process.
• Is able to assess the information received and make a determination regarding the
allegations on the basis of the evidence collected.
3.4 Obtain expert or specialist advice and/or refer to precedents if required.
There are occasions when the organisation’s dispute resolution procedure fails to resolve the
grievance or conflict. In this situation, the next step is to refer the matter to the state or federal
Industrial Relations Commission. In this situation, the employee may refer, if they haven’t
already done so, to specialist assistance in the form of either legal or union representation.
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Employers may also refer to outside specialists, including an external industrial relations expert,
an employment advocate available either privately or through employer associations, or services
such as conciliation available through the state and federal Industrial Relations Commission.
When the Commission makes a decision they will consider previous decisions that have been
made during the arbitration process as a comparison.
3.5 Determine negotiation outcomes, negotiation strategy and negotiation timeframes
Negotiation Skills (Pg 268 to 283 Understanding Australian Industrial Relations)
Managers, employees and human resource practitioners need to have strong negotiation skills to
carry out a range of activities including:
• Establishing conditions of employment.
• Resolving conflict or differing of opinions
• Developing enterprise agreements
In a negotiation each party is trying to satisfy their own needs and are trying to reach agreement
with another party in order to do so. It usually therefore involves give and take by each party.
The steps involved in Negotiation are:
1) Preparation
2) Persuasion
3) Compromising
4) Closing
Preparation
Each party needs to:
• identify the issues
• set targets
• gather data and information to support each claims
• review the other parties claims and preempt their arguments
• prepare and rehearse negotiation discussions
Persuasion
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This step involves each party outlining their side and presenting evidence in support of their
arguments. The aim is to try and find common ground and a win win scenario. Steps should
include:
• Place all issues on the table at the beginning.
• Establish relationships.
• Ask questions.
• Avoid being aggressive and antagonistic.
• Take breaks to assess the other parties information where required.
Compromising
This stage is about trying to reach an agreement. Each side might try and accept some parts of
the other’s claims if that party will accept some of theirs.
Closing
If agreement is reached then this will be documented clearly for all parties. This will include
documenting each agreement and how it will be implemented. If agreement is not reached both
parties will need to concede that agreement is not possible and pursue other options available to
them e.g. approaching the AIRC under Fair Work Australia.
Good Faith Bargaining
When negotiating you should always operate under the principles of ‘good faith bargaining’.
This includes:
• allowing representation of each party
• being transparent and presenting all necessary information
• complying with agreed procedures
• genuinely considering the other parties arguments and information
• attending meetings.
Negotiating an Enterprise Agreement
The standard steps involved in negotiating an Enterprise Agreement are:
1. Receive employee ‘ambit’ log of claims.
2. Company reviews claims and determines their position.
3. Company identifies any employer claims to table during negotiation.
4. Establish negotiation committee.
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5. Initial meeting to establish meeting framework, timeframes, ground rules.
6. Continual meetings to discuss each sides position and try and reach agreement.
In practice most organisations already have their agreements in place and are now into their third
and fourth versions. Therefore if negotiations are to be done then they may centre around a
relatively narrower area than the entire contents of an agreement.
Initiatives may be taken by either side -employer or employee representatives - to change or
amend the provisions. Preparations for this may start with the management team wanting to
negotiate changes, or the introduction of a long term objective from the earlier analyses. The IR
information sources monitored will help to establish parameters in the planning stage of what one
would like, what one could realistically aim for if the ideal position can't be achieved, and what
one will not accept.
3.6 Advocate the organisation’s position in negotiation to obtain agreement
Managers and Human Resources practitioners will often be required to explain an organisation’s position on a particular matter e.g. enterprise agreement, conflict situation, disciplinary matter to a number of different parties:
• Employees
• Union Delegates
• Consultative Committees
• Union Officials
• Industrial Relations Commissions
It is therefore imperative that the people required to do this have strong communication and negotiation skills and follow the principles outlined in 3.5.
3.7 Document and if necessary, certify the agreed outcomes with the relevant jurisdiction
In any conflict or negotiation situation it is essential that the appropriate records are kept. These records can then be used should the matter be unresolved and need to be taken to the next stage.
For example:
• Meeting notes
• Investigation notes
• Mediation Outcomes
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• Negotiation Summary
• Enterprise Agreement clauses
Workplace Collective Agreements and AWAs need to be certified within the relevant jurisdiction e.g. Industrial Relations Commission and will be made a public document that is legally enforceable.
3.8 Implement agreements
Once an agreement has been made it is important to identify what needs to be done to make sure all components of that agreement are met. At this stage you would normally do an implementation plan (see 2.1) which will allocate tasks, responsibilities and timeframes.
It will be important to effectively communicate with the necessary parties and provide training.
3.9 Take remedial action where groups or individuals fail to abide by agreements
Employer options under the Act
In cases on industrial action, the Australian Workplace Relations Act 1996 provides employers
the following range of options:
• orders to stop or prevent industrial action
• penalties
• damages and injunctions.
Orders to stop or prevent industrial action
Employers can apply to the AIRC for an order to stop or prevent industrial action. The AIRC may
then make an order if there is actual or threatened industrial action in the following categories:
• an industrial dispute
• the negotiation or proposed negotiation of a Certified Agreement
• any work regulated by a federal award or Certified Agreement.
Penalties
The Australian Workplace Relations Act 1996 does not allow industrial action to occur during the
life of an agreement. If an industrial dispute occurs during this time, employers are able to seek
either a penalty (up to $10,000 for a body corporate or $2,000 in any other case) or an injunction
to stop the action.
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Damages and injunctions
Employers are able to take legal action in a state/territory Supreme Court for damages or an
injunction for a breach of common law, for example, for unlawful interference with their trade or
business.
Before taking action in the Supreme Court, employers are required to apply to the AIRC for a
certificate. The Commission must then immediately try to stop the industrial action. However, if
the industrial action is continuing 72 hours after the AIRC has been notified, they will then issue
employers with a certificate, which is then used in court.
Paying workers during industrial action
The Australian Workplace Relations Act 1996 states that it is illegal to pay employees during
periods of industrial action.
It is also illegal for employees to accept payment during periods of industrial action, make claims
(either personally or through their union) for pay during this time, or threaten further industrial
action to obtain their pay.
Dismissing striking workers
It is illegal for employers to dismiss or threaten to dismiss employees for undertaking protected
industrial action. In this instance it means that industrial action is allowed under certain
conditions, for example, during the negotiating period of an agreement.
Should an employer dismiss an employee(s) for undertaking unprotected industrial action, for
example, during the life of an agreement, the normal requirements must be met: the dismissal
must not be unfair, that is, harsh, unjust, unreasonable or unlawful (ie dismissal for not signing an
AWA).
In your own workplace or one with which you are familiar, how are grievances and conflicts
managed? Is there a combination of formal procedures and properly trained personnel? What
other methods, if any, are used to assist in this area?
Disciplinary Action against Individuals
Where an individual has failed to abide by an agreed policy, procedure or agreement the
Company may choose to take disciplinary action against them. This could include:
• Informal warning
• Formal Written Warning
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• Termination
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Transition to Forward with Fairness Bill 2008
Following the release of the Workplace Relations Amendments (Transition to Forward with
Fairness) Bill 2008, on 14 February 2008 the Government released the Discussion Paper –
National Employment Standards Exposure Draft. The Exposure Draft includes the 10 National
Employment Standards (the NES) which, together with the modernisation of Awards, will form
an enforceable safety net to protect fair minimum wages and conditions for working Australians.
The NES represent the key minimum entitlements for all employees which will be guaranteed in
legislation. In summary, the proposed NES are:
1. Maximum weekly hours
The maximum weekly hours are 38 hours for full-time employees, subject to reasonable
additional working hours. Unlike the Howard Government’s Australian Fair Pay and Conditions
Standard, the NES does not provide for the averaging of hours but the proposed NES expressly
permit modern Awards to deal with averaging of hours arrangements.
2. Requests for flexible working arrangements
An employee with a child under school age or with responsibility for the care of a child under
school age may make a request in writing to the employer for flexible working arrangements and
the employer must respond in writing to the request within 21 days. An employer may only
refuse the request on ‘reasonable business grounds’.
3. Parental leave and related entitlements
The proposed NES provides that each parent (who is an eligible employee) may be absent from
work for separate periods of up to 12 months of unpaid parental leave in association with either
the birth of a child to an employee or their spouse or the adoption of a child below school age. An
employee who takes 12 months’ parental leave may also request additional leave of up to 12
months and the employer may only refuse on reasonable business grounds.
4. Annual leave
An employee (other than a casual employee) is entitled to 4 weeks of paid annual leave and a
shift worker will be entitled to an additional week of paid annual leave.
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5. Personal/carer’s leave and compassionate leave
An employee (other than a casual employee) is entitled to:
i. 10 days of paid personal/carer’s leave for each year of service;
ii. 2 days of paid compassionate leave per occasion;
iii. 2 days of unpaid carer’s leave per occasion (if paid carer’s leave is exhausted).
A casual employee is entitled to:
i. 2 days of unpaid compassionate leave per occasion; and
ii. 2 days of unpaid carer’s leave per occasion.
6. Community service leave
An employee is entitled to be absent from work to engage in prescribed community service
activities such as jury service and emergency service duties. In relation to jury service leave, an
employee (other than a casual employee) is entitled to ‘make-up pay’ which is the difference
between what the employee receives in respect of jury service (not including any expense related
allowances) and the employee’s base rate of pay for their ordinary hours of work for the time that
the employee is absent on jury leave.
7. Long service leave
Until a uniform long service leave NES is developed, long service leave entitlements in pre-
modernised awards, NAPSAs or state or territory laws will be preserved to ensure they cannot be
bargained away.
8. Public holidays
An employee is entitled to be absent from work on public holidays and is also entitled to be paid
for his or her ordinary hours that would have normally been worked at their base rate of pay. An
employer is permitted to reasonably request an employee to work on a public holiday. An
employee may refuse the request if it is not reasonable or if the employee’s refusal is reasonable.
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9. Notice of termination and redundancy pay
An employer must provide the following minimum periods of notice (or make a payment in lieu
of notice) to an employee on termination of employment:
Employee's period of continuous service with the
employer
at the end of the day that notice is given
Perio
d
Not more than 1 year 1
week
More than 1 year but not more than 3 years 2
weeks
More than 3 years but not more thatn 5 years 3
weeks
More than 5 years 4
weeks
The proposed redundancy pay NES provides that an employee is entitled to redundancy pay if the
employee’s employment is terminated at the initiative of the employer because the employer no
longer requires their job to be done by anyone because of the insolvency or bankruptcy of the
employer. However there is no entitlement to redundancy if the employee is employed by a
business with fewer than 15 employees. The calculation of redundancy pay is based on an
employee’s period of continuous service in accordance with the following:
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Employee's period of continuous service with the
employer
at the end of the day that notice is given
Period
At least 1 year but less than 2 years 4
weeks
At least 2 years but less than 3 years 6
weeks
At least 3 years but less than 4 years 7
weeks
At least 4 years but less than 5 years 8
weeks
At least 5 years but less than 6 years 10
weeks
At least 6 years but less than 7 years 11
weeks
At least 7 years but less than 8 years 13
weeks
At least 8 years but less than 9 years 14
weeks
At least 9 years but less than 10 years 16
weeks
At least 10 years 12
weeks
10. Fair Work Information Statement
An employer will be required to give each new employee the Fair Work Information Statement
which will contain information regarding the NES, modern Awards, agreement making, the right
to freedom of association and the role of Fair Work Australia.
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Unfair Dismissal
An unfair dismissal is unfair when it is ‘harsh, unreasonable or unjust’.
WORKPLACE RELATIONS ACT 1996 - SECT 652
Arbitration
(1) If: (a) the Commission has issued a certificate under subsection 650(2) regarding conciliation of an application relating to a termination of employment; and (b) the applicant has made an election under subsection 651(1), (2), (3) or (5) to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable; the Commission may so proceed to arbitrate the matter. (2) Neither the making of an election under subsection 651(1), (2), (3) or (5) to proceed to arbitration nor the commencement of that arbitration prevents further conciliation of the matter being attempted, or the parties from settling the matter, at any time before an order is made under section 654. (3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to: (a) whether there was a valid reason for the termination related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees); and (b) whether the employee was notified of that reason; and (c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and (d) if the termination related to unsatisfactory performance by the employee—whether the employee had been warned about that unsatisfactory performance before the termination; and (e) the degree to which the size of the employer’s undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and (f) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and (g) any other matters that the Commission considers relevant.
WORKPLACE RELATIONS ACT 1996 - SECT 653
Exercise of arbitration powers by member who has exercised conciliation powers
(1) If a member of the Commission has exercised conciliation powers in relation to an application under this Division, the member must not exercise, or take part in the exercise of, arbitration powers in relation to the application if a party to the arbitration proceeding objects. (2) The member is not taken to have exercised conciliation powers in relation to the application merely because: (a) the member arranged for a conference of the parties or their representatives to be presided over by the member, but the conference did not take place or was not presided over by the member; or (b) the member arranged for the parties or their representatives to confer among themselves at a conference at which the member was not present.
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WORKPLACE RELATIONS ACT 1996 - SECT 654
Remedies on arbitration
(1) Subject to this section, the Commission may, on completion of the arbitration, make an order that provides for a remedy of a kind referred to in subsection (3), (4) or (7) if it has determined that the termination was harsh, unjust or unreasonable. (2) The Commission must not make an order under subsection (1) unless the Commission is satisfied, having regard to all the circumstances of the case including: (a) the effect of the order on the viability of the employer’s undertaking, establishment or service; and (b) the length of the employee’s service with the employer; and (c) the remuneration that the employee would have received, or would have been likely to receive, if the employee’s employment had not been terminated; and (d) the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and (e) any other matter that the Commission considers relevant;
WORKPLACE RELATIONS ACT 1996 - SECT 698 Alternative dispute resolution process An alternative dispute resolution process is a procedure for the resolution of disputes, and includes: (a) conferencing; and (b) mediation; and (c) assisted negotiation; and (d) neutral evaluation; and (e) case appraisal; and (f) conciliation; and (g) arbitration, or other determination of the rights and obligations of the parties in dispute; and (h) a procedure or service specified in the regulations.
Legislation - Federal
• Racial Discrimination Act 1975
• Sex Discrimination Act 1984
• Disability Discrimination Act 1992
• Human Rights and Equal Opportunity Commission Act 1996
State - NSW
• New South Wales Anti-Discrimination Act 1977
• New South Wales Industrial Relations Act 1996
Note - The federal legislation takes precedence over state legislation to the extent of any
contradiction