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Workplace Dispute Resolution – Ray Kerkmez Research Paper

Workplace Dispute Resolution

 

 

How recent developments led to new approaches to resolve workplace disputes at the workplace level rather than at an industry level through the intervention of industrial tribunals including those affected by cultural differences.

 

by Ray Kerkmez  LLM, MDR

 

Abstract

Workplace Dispute Resolution in Australia has been considered as the most important foundation of the country which, for decades, has successfully protected the welfare of ordinary employees. Dispute Resolution has been created on the premise that in order for a worker to be productive, he/she must be guaranteed with a certain kind of security that all the efforts he/she has invested in a certain organisation will not be put to waste by opportunistic capitalists who may deprive him/her of certain benefits. That is why Australians have relied so much on their laws and the sense of security that they give so that citizens can be more independent and self-reliant in settling their own personal disputes with the government still as their backup.

 

Introduction

In April 2006, the Australian Government, through Kevin Andrews, the Minister for Employment and Workplace Relations, launched a $10.4 million budget in order to support a systematic plan of action in carrying out “alternative dispute resolution at the workplace.” The project, which was referred to as the Alternative Dispute Resolution Assistance Scheme or ADRAS, aimed to provide $1,500 of government financial assistance to qualified individuals involved in workplace disputes. The said amount will be used as payment for private service providers under the Alternative Dispute Resolution or ADR industry. There is also an additional $500 provision to cover for the ADR provider’s travel expenses but only in cases when disputes have occurred in “regional or remote areas”. [1] The Scheme is evidence that shows how supportive the Australian Government is of maintaining a harmonious work atmosphere among its citizens who are often affected by factors such as cultural differences. Furthermore, the Scheme has been undertaken under the direction of the Department of Employment and Workplace Relations.

A certain system or community cannot function properly when it is dominated by conflicts that make it hard for individuals to work or coordinate with each other. The result is that a considerable amount of time and resources are being lost when disputes are not properly addressed or resolved. The succeeding discussion will provide an analysis regarding the difficulties encountered when resolving workplace disputes between employers and employees. Certain topics will also shed light on the different challenges involved in the smooth resolution of such disputes such as cultural differences, along with the aspects of law, particularly those dealing with theories, practices, and principles which serve as basis for the establishment of workplace dispute resolution.

 

Theories of Law

Australia’s workplace dispute resolution is based on a dispute system design or DSD which is composed of several procedures used in resolving a disagreement. The idea is to make sure that the parties involved should avail themselves of other alternatives in case a certain procedure does not work. The Australian Government has also enacted laws that provide easy access to dispute resolution services that are “with voluntary service providers, less expensive, and accessible to employers, unions, and employees”[2]Furthermore, DSD is established on at least three theoretical propositions, namely:

1. The procedures of dispute resolution may be identified as either “interest-based, rights-based or power-based in approach”. [3] The interest-based approach was taken from the idea that negotiations are carried out in order to satisfy the needs of each party on a particular issue. The rights-based approach settles a dispute by figuring out who is correct based on adopted standards like “business customs, terms of contract, rules and principles of law, etc.”[4] Lastly, the power-based approach makes use of coercion or influence like “threats, aggression, or withholding of benefits” [5] in order to achieve a certain end. Some instances where the power-based approach is applies are strikes, lock-outs and voting.

2. The second theoretical proposition of DSD is based on the cost versus benefits effects of dispute resolution procedures. This theory explicitly states that based on the three approaches mentioned previously, the interest-based approach is less costly and has more beneficial results as compared with the rights based approach. The latter however, is deemed less expensive and provides more benefits compares with the power-based approach. Although interest-based procedures may appear as the most ideal in terms of the cost versus benefit perspective, this approach is not applicable in settling all kinds of disputes. For instance, when one of the concerns of a certain dispute involves issues of public policy affecting the society, the rights-based approach should be adopted instead of prioritising the individual interests of either party in disagreement.

3. The third and final theory emphasises recognising the interest based approach as the most cost-effective procedure in dispute resolution but does not discount the benefits of the rights-based and power-based approaches either. Upon this basis, dispute system designs are created with an incorporation of the three approaches but with the interest-based procedure as the more dominant when applicable in order to take advantage of the cost and benefit effects.

 

Practice and Principles of Law

Australia’s Institute of Arbitrators & Mediators Australia or IAMA has provided a set of rules to be followed in order to ensure that workplace disputes are dealt with in a “fast, fair, and cost-effective manner”[6] These rules are composed basically of two stages:

1. The first stage is the ADR process between two parties as facilitated by an ADR provider. It is also important to note the three major factors involved in this stage namely: the ADR or ADR process which is “alternative dispute resolution and includes any type of alternative resolution including but not limited to mediation, conferencing, assisted negotiation, neutral evaluation case appraisal, conciliation and arbitration”; the parties “to a Dispute who agree that their dispute shall be determined under the IAMA Workplace Dispute ADR Rules”; and the ADR provider or the “person agreed or appointed to conduct an ADR process under the ADR Rules”. [7]

2. If the ADR process is not enough to settle the dispute, the parties have the option to allow the ADR provider to decide on a solution which will be based on substantial information to be provided by the parties. This alternative process is also called arbitration which, however, is more expensive and takes more time.

However, the Australian Government also enacted a law called the Work Choices legislation, also known as the Workplace Relations Amendment Act of 2005. Work Choices has been responsible for extending government services in terms of dispute resolution to different regions of Australia [8] which has greatly affected groups such as the Transport Workers Union of Australia [9]who have come up with their own dispute resolution agreement by taking the necessary steps of first discussing issues with their supervisors until the process reaches a dispute settlement process. This law provides an option for employers and employees to settle their disputes either by resorting to ADR or to a special delegated tribunal called the Australian Industrial Relations Commission or AIRC which provided the functions of mediation or conciliation. [10] Mediation is defined as the process wherein an independent, nonpartisan individual takes the role of a facilitator in order to guide the parties having a dispute to come to a certain agreement. It is important to note here that the decision making lies solely on the parties and not the mediator. [11] Some groups have learned to take the mediation process to a different level by combining and improving several functions instead of settling with the traditional ones. One example is by combining an ADR program with the functions of “facilitating, settlement, evaluation, and therapy”[12] The growth in mediation practice is not only being experienced in Australia but as well as other countries like USA, Canada, New Zealand, England and other parts of Europe and Africa to mention a few[13]

But the AIRC can only interfere under certain conditions “wherein the dispute resolution procedure in the agreement confers jurisdiction on the Commission and the parties in dispute have already exhausted all possible steps before resorting to the services of the AIRC”[14] However, the AIRC has been abolished and replaced by Fair Work Australia or FWA, created by the Fair Work Act 2009. It includes workplace dispute resolution among its major functions. This new body has been the source of controversy since FWA was considered a very bold move to replace the decades-old AIRC and caused some speculation that it is meant to serve the “new appointees” in the tribunal[15] The FWA serves as an “umpire” between two disputing parties and many individuals have affirmed its reliability especially in resolving workplace conflicts that are meant to satisfy the workers and to ensure “sound industrial relations”[16] This is part of the Scheme’s objective to ensure that there is enough flexibility in workplace operations, as well as “work arrangements that ensure balance among the workers of an organisation”[17] However, in case FWA is not enough to settle an existing dispute, the most likely final alternative will be through arbitration which may call for the interference of the “procedural powers of the Commission itself which includes formal hearings, participation of witnesses, and provisions of evidences.” So far this is deemed as the most drastic solution available in case ADR and FWA are not satisfactory enough[18] However, many Australians believe that ADR offers more benefits as compared with FWA or the usual court proceedings. These advantages are presented under the following:

1. The process consumes less time and costs since there is no need for the parties in dispute to undergo several steps as in judicial hearings;

2. Parties involved are assured of confidentiality since the dispute resolution process is done privately and the decision is also given in confidence or in secret. Privacy allows the parties to air the very substance of their sentiments which is significant in uncovering the real issues behind a certain dispute. In turn, this process helps attain speedy and cost-effective results. In fact, even Fair Work Australia itself confirms that simplicity is one of the features of a good dispute resolution process

3. It saves parties from further delay in coming to agreement[19] 

However, aside from these basic features, the real success of a private dispute resolution process lies on the following qualities: [20]

a) Legitimate process – there must be consent on both parties to conduct the dispute resolution process;

b) Legitimate substance – the dispute resolution system must be free from bias and must make sure that the process aims to attain the improvement of business operations;

c) Scope – the process must cover the necessary aspects like the interests and issues of both parties;

d) Independence – facilitators, mediators, and arbitrators must not be identified with the parties nor share any vested interest in the process which may affect their facilitation role;

4. ADR is deemed more convenient since it is capable of adjusting to the available schedules of the parties and can also be relied even on short notice;

5. It offers more flexibility to the parties because unlike the formal set-up of the usual court proceedings, the ADR can be tailored fit in accordance with the needs of the parties who are also allowed with more control; and

6. There is greater possibility that the parties can restore healthy relationships after the process since the ADR gives each party a chance to negotiate on their own terms and they are even allowed to air as much as possible all their sentiments regarding a particular issue. [21]

Due to matters of flexibility, dispute system designs in Australia are required to follow principles or standards that are guaranteed to satisfy certain needs such as that of the “users of the system, the laws being affected by the dispute and others”.[22] 

One principle deals with the scope of the dispute to be resolved. In order to avoid confusion, the conditions of the dispute must be clearly defined like whether it pertains to all possible disputes that may occur between two disagreeing parties or referring only to particular disputes. The latter case, which obviously calls for restrictions, must be fully made public, such as whether the dispute to be dealt with by the resolution system only deals with “discrimination or compensation”. [23] In Australia, statutory workers’ compensation schemes established by state governments have taken these disputes out of the workplace dispute arena because the insurer now stands in the employer’s place under the subrogation principle of insurance law. DSDs are also deemed more effective when they are capable of preventing the occurrence of a certain dispute or in applying the three theoretical approaches of interest, rights, and power in case a conflict does arise. [24]

According to the Pre-Litigation Dispute Resolution Requirements of the Civil Procedure Act, disputes can be resolved properly by following certain steps:[25]

1. Either party must notify the other of the matters or issues at hand end express the intention of resolving the dispute;

2. The party who receives the notification must be gracious enough in providing the necessary feedback as well as alternatives in order to resolve the dispute;

3. Each party must exchange necessary documents that will serve as basis for the dispute resolution process; and

4. Each party fully cooperates in the alternative dispute resolution process.

 

The Challenges of Conflict Management at the Modern Workplace: Analysis

One of the benefits of having an access to a dispute system design is that the differences between employers or employees are immediately settled before party disagreements begin to emerge. Furthermore, the workplace is provided with the necessary insights so that in case a dispute may occur, it may be prevented from happening again. [26] But one of the challenges in the management of conflicts within the workplace environment is the dilemma involved in identifying which type of dispute system design (DSD) to adopt in order to ensure that the negotiation process will provide more benefits rather than costs. Some recommendations include that DSDs are created to tailor fit specific needs and it will be much helpful if the conceptualisation process will be participated in not only by the senior management but as well as employee representatives from different departments[27]

Cultural differences also serve as the greatest barriers in the effectiveness of conflict management within the workplace as it prevents the necessary communication and understanding between personnel which is necessary for the management in getting a clear idea on how to begin dealing with the conflict at hand. This actually can result in a domino effect that can lead to further devastating barriers such as lack of awareness on the impact of workplace conflict especially for business conditions, lack of awareness on how such conflicts can be properly addressed, etc. Furthermore, these barriers may create a so-called aggrieved employee who is “capable of sabotaging business operations by ruining a company’s reputation, stealing intellectual property, theft, property damage, or even physical danger”. [28]

According to previous studies, approximately 21 percent or 180,000 small business establishments in Australia are owned and managed by individuals whose native languages are not English. One good example of these groups are the Asian businessmen settling in Australia who are more concerned with the “actual business relationship rather than the contractual relationship” (Benchmarks, 2007). In order to avoid disputes in such set-ups, it is helpful to take measures such as the provision of documentation containing terms of agreements or contracts, advices, and instructions that are provided in the necessary foreign language. It is also advisable to seek the assistance of language professionals who can translate foreign languages to English[29]The important lesson of this study is that no matter how crucial cultural differences are in settling disputes, there are helpful strategies available in order to counter any possible disadvantages.

 

Recent Changes in Managing Workplace Conflicts and Disputes

According to ADR Bulletin editor Laurence Boulle, [30] “the development of ADR has not been an accident of history but is a function of political, economic and managerial imperatives”. This statement confirms that the impact of workplace conflicts is not only felt within the confines of business organisations but as well by the entire society.

 

Openness in Markets

According to educator Pat Marshall, [31] many organisations in Australia have already learned to embrace the significance of maintaining a dispute resolution system. The reason is that too much conflict within a certain environment may lead to a dysfunctional unit. Unfortunately, some organisations are noted to encounter some difficulties in designing their own dispute resolution systems, one ironic example of which is the school institution. Some reasons behind this include that teachers are usually more concerned about educating students who are the main recipients of their energy and attention. Aside from this, they are also concerned about the parents of the students whose viewpoint on education is something that would bring their child a secure future. In order to respond to these dilemmas, Marshall recommended that a serious consideration be given to certain factors such as “training, resource allocation, challenging cultures of independence and recognition of the limitations of interest-based processes”. [32]

Furthermore, dispute resolution systems are also being considered in alleviating the indigenous groups of Australia in order to provide proper education and up-to-date knowledge for the Aboriginal people including “policy makers and service deliverers”[33] The Australian Government now always makes sure that minority groups such as the aforementioned are made aware of their rights especially when dealing with issues against more influential groups.

 

Legislative Change and Innovation

The Australian Workplace Agreement (AWA) is considered as one of the most significant reforms of Australia’s Workplace Relations and Other Legislation Amendment Act of 1996 (formerly Industrial Relations Act of 1988) as it is the first ever provision in the country’s history which has allowed qualified employers to facilitate “the negotiation and settlement of employment conditions directly with individual employees”. [34] This is a far departure from the earliest provisions of 1904 when the Commonwealth Parliament assigned an independent tribunal in the settlement of industrial disputes, but underwent several reforms after this centralised regulation of employment conditions and conflicts proved itself to be “less flexible, inefficient, and not very competitive”. [35] However through the AWA, the parties involved were given more control in reviewing and amending, if necessary, some of their agreements made in the past. This is even more convenient since the parties involved already have sufficient grasp of the said agreements which can save more time and money unlike if there is still a third party who will perform the review of information. However, the legislation requires that as part of the AWA’s filing and approval conditions, companies must already have a dispute resolution procedure at hand which may either be customised or patterned from other standards already used before[36]

 

Conclusion

The success of workplace dispute resolutions rests on the existence of laws, principles, and practices with objectives that are aimed towards the welfare of a country’s citizens. Dispute resolution is an important reminder that the security of every individual does not rely on the existence of laws alone but rather on the watchful eye of ordinary workers who keep the economy in motion and whose welfare must forever be safeguarded.

 

 


[1] B Burke, (2006). $10.4 m Alternative Dispute Resolution Assistance Scheme launched. Australian Government. Australia: Media Release, pp. 1-2

[2] Western Australian Industrial Relations Commission. (2008). The Employment Dispute Resolution Act. Retrieved from http://www.edr.wairc.wa.gov.au/Pages/Background/Background.aspx

[3] B Wolski, (1998). The Model Dispute Resolution Procedure for Australian Workplace Agreements: A Dispute Systems Design Perspective. Bond Law Review. Vol. 10:1, p. 12.

[4] Ibid 14.

[5] Ibid 15.

[6] The Institute of Arbitrators & Mediators. (April, 2006). The IAMA Workplace Dispute ADR Rules. Australia.

[7] Ibid.

[8] R Markey & A Hodgkinson, (2004). The Impact of the Workplace Relations Act on Regional Patterns of Industrial Relations: The Illawarra Region of Australia, 1996 – 2004. Journal of Industrial Relations. doi: 10.1177/0022185608094116. p. 753

[9] Union Collective Agreement. (2006). South Australian Management Support. Print. p. 4

[10] B Burke, (2006). $10.4 m Alternative Dispute Resolution Assistance Scheme launched. Australian Government. Australia: Media Release, p. 1

[11] G Griffin, (2005). The Role and Usage of Conciliation and Mediation in Dispute Resolution in the Australian Industrial Relations Commission. Australian Bulletin of Labour. Print.

[12] C Brown, (2005). A New Breed of Mediation: “The Labradoodle.” Western Australian Dispute Resolution Association. Newsletter, Volume 31, p.1

[13] Current Trends, Process and Practice in Mediation and Alternative Dispute Resolution. (2008). Retrieved from http://www.newzealand.govt.nz. p. 10

[14] A Forsyth, (2006). Dispute Resolution – the Early Experience under Work Choices. Paper for the 5th Annual Thomson Workforce Conference. Australia. p.4

[15] A Forsyth, (2007). Which Way Forward for Dispute Resolution? Retrieved from http://www.apo.org.au/commentary/which-way-forward-dispute-resolution

[16] Fair Work Australia Widens Umpire Remit in Enterprise Agreement Dispute Resolution Procedures. (2010). Thomson Reuters Workforce. Retrieved from http://sites.thomsonreuters.com.au/workplace/2010/09/16/fair-work-australia-widens-umpire-remit-in-enterprise-agreement-dispute-resolution-procedures/

[17] Enterprise Agreement 2009-2011. (2009). Murray-Darling Basin Authority. Australian Government. Australia: Print. p. 6

[18] A Booth & C Thompson, (2006). Dispute Resolution in the Workplace. p. 12. Retrieved from http://www.cosolve.com.au

[19] Fair Work Ombudsman. (2011). Best Practice Guide. Australian Government. Print. p.3

[20] C Thompson, (2007). Dispute Resolution in the Workplace: Public Issues, Private Troubles. ADR Bulletin. Volume 9:8, pp. 141-143.

[21] Alternative Dispute Resolution Assistance Scheme. (2006). Department of Employment and Workplace Relations. p. 6. Retrieved from http://www.iama.org.au/pdf/ADRASInfo.pdf

[22] B Wolski, (1998). The Model Dispute Resolution Procedure for Australian Workplace Agreements: A Dispute Systems Design Perspective. Bond Law Review. Vol. 10:1, p. 18.

[23] Ibid.

[24] Ibid 19.

[25] O Dinkha, (2011). Australia: The Introduction of Pre-litigation Dispute Resolution Requirements to the Civil Procedure Act. Retrieved from http://www.mondaq.com/australia/article.asp?articleid=124612

[26] B Wolski, (1998). The Model Dispute Resolution Procedure for Australian Workplace Agreements: A Dispute Systems Design Perspective. Bond Law Review. Vol. 10:1, p. 13.

[27] V Van Gramberg, (2001). Workplace Justice and the Design of Dispute Resolution Clauses. Victoria University of Technology. Retrieved from Working Paper Series Database. p.12

[28] E Devine, (2008). Workplace Conflict: Risks and Opportunities. Devine Law at Work. pp 4-5 Retrieved from www.devinelaw.com.au

[29] Benchmarks for Dispute Avoidance and Resolution: A Guide. (1997). Commonwealth of Australia. Print.

[30] L Boulle, (2006). Managing Workplace Conflict – Alternative Dispute Resolution in Australia. ADR Bulletin. Vol. 8:8, pp. 154-156.

[31] P Marshall, (2001). Designing a Dispute Resolution System: The Constraints of Educational Institutions. Retrieved April, 2011 from http://www.apmec.unisa.edu.au/apmf/2001/papers/marshall.pdf

[32] P Marshall, (2005) p. 3

[33] M Kellam, (2009). NADRAC Recommendations to the Attorney-General of Australia-Indigenous Dispute Resolution and Conflict Management. NADRAC. Print. p. 2

[34] B Wolski, (1998). The Model Dispute Resolution Procedure for Australian Workplace Agreements: A Dispute Systems Design Perspective. Bond Law Review. Vol. 10:1, p. 10

[35] Ibid.

[36] Ibid.

 

 


 

References

Alternative Dispute Resolution Assistance Scheme. (2006). Department of Employment and Workplace Relations. Retrieved from http://www.iama.org.au/pdf/ADRASInfo.pdf

Benchmarks for Dispute Avoidance and Resolution: A Guide. (1997). Commonwealth of Australia. Print.

Booth, A. & Thompson, C. (2006). Dispute Resolution in the Workplace. Retrieved from http://www.cosolve.com.au

Boulle, L. (2006). Managing Workplace Conflict – Alternative Dispute Resolution in Australia. ADR Bulletin. Vol. 8:8, pp. 154-156.

Brown, C. (2005). A New Breed of Mediation: “The Labradoodle.” Western Australian Dispute Resolution Association. Newsletter, Volume 31.

Burke, B. (2006). $10.4 m Alternative Dispute Resolution Assistance Scheme launched. Australian Government. Australia: Media Release

Current Trends, Process and Practice in Mediation and Alternative Dispute Resolution. (2008). Retrieved from http://www.newzealand.govt.nz. p. 10

Devine, E. (2008). Workplace Conflict: Risks and Opportunities. Devine Law at Work. Retrieved from http://www.devinelaw.com.au/ 

Dinkha, O. (2011). Australia: The Introduction of Pre-litigation Dispute Resolution Requirements to the Civil Procedure Act. Retrieved from http://www.mondaq.com/australia/article.asp?articleid=124612

Enterprise Agreement 2009-2011. (2009). Murray-Darling Basin Authority. Australian Government. Australia: Print.

Fair Work Australia Widens Umpire Remit in Enterprise Agreement Dispute Resolution Procedures. (2010). Thomson Reuters Workforce. Retrieved from http://sites.thomsonreuters.com.au/workplace/2010/09/16/fair-work-australia-widens-umpire-remit-in-enterprise-agreement-dispute-resolution-procedures/

Fair Work Ombudsman. (2011). Best Practice Guide. Australian Government. Print.

Forsyth, A. (2006). Dispute Resolution – the Early Experience under Work Choices. Paper for the 5th Annual Thomson Workforce Conference. Australia.

Forsyth, A. (2007). Which Way Forward for Dispute Resolution? Retrieved from http://www.apo.org.au/commentary/which-way-forward-dispute-resolution

Griffin, G. (2005). The Role and Usage of Conciliation and Mediation in Dispute Resolution in the Australian Industrial Relations Commission. Australian Bulletin of Labour. Print.

Kellam, M. (2009). NADRAC Recommendations to the Attorney-General of Australia-Indigenous Dispute Resolution and Conflict Management. NADRAC. Print.

Markey, R. & Hodgkinson, A. (2004). The Impact of the Workplace Relations Act on Regional Patterns of Industrial Relations: The Illawarra Region of Australia, 1996 – 2004. Journal of Industrial Relations. doi: 10.1177/0022185608094116

Marshall, P. (2001). Designing a Dispute Resolution System: The Constraints of Educational Institutions. Retrieved April, 2011 from http://www.apmec.unisa.edu.au/apmf/2001/papers/marshall.pdf

The Institute of Arbitrators & Mediators. (April, 2006). The IAMA Workplace Dispute ADR Rules. Australia.

Thompson, C. (2007). Dispute Resolution in the Workplace: Public Issues, Private Troubles. ADR Bulletin. Volume 9:8, pp. 141-143.

Union Collective Agreement. (2006). South Australian Management Support. Print.

Van Gramberg, V. (2001). Workplace Justice and the Design of Dispute Resolution Clauses. Victoria University of Technology. Retrieved from Working Paper Series Database.

Western Australian Industrial Relations Commission. (2008). The Employment Dispute Resolution Act. Retrieved from http://www.edr.wairc.wa.gov.au/Pages/Background/Background.aspx

Wolski, B. (1998). The Model Dispute Resolution Procedure for Australian Workplace Agreements: A Dispute Systems Design Perspective. Bond Law Review. Vol. 10:1, pp. 1-39.

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