Settlement of disputes in agreements

Cases

Settlement of disputes in agreements

Senior Deputy President Polites of the Australian Industrial Relations Commission has refused to certify an agreement because of a defective dispute settlement procedure.

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Senior Deputy President Polites of the Australian Industrial Relations Commission has refused to certify an agreement because of a defective dispute settlement procedure.

The requirements for dispute resolution procedures in certified agreements under the Workplace Relations Act 1996(Cth) differ from those required in awards and from those currently found in many awards. In many cases the Commission has attempted to remedy deficiencies in settlement procedures by undertakings from the parties at the certification proceedings.

However, under s170LT(1) the Commission must not certify an agreement unless it is satisfied the requirements of s170LTare met. Section 170LT(8) provides that an agreement must include procedures for preventing and settling disputes between the employer and the employees whose employment is covered by the agreement. In this case, Senior Deputy President Polites was not satisfied that the procedure provided in the agreement complied (Ampol Refineries (NSW) Pty Ltd and AIMPE, Manufacturing Agreement 1997 - Print P6777). He found:

"...that on a plain reading of this clause in relation to a dispute arising under the agreement the dispute could be unresolved at the conclusion of the procedures set out in the agreement."

The procedure in the agreement merely referred the matter to the Commission at a certain stage. It did not identify the Commission’s role or powers. There is no requirement for a dispute procedure in an agreement to involve the Commission but it must provide for preventing and settling disputes. Section 170LWallows dispute procedures to empower the Commission to settle disputes or appoint a Board of reference to settle disputes. The parties declined to alter the procedure to include the words "...for settlement or resolution" which would have given power to the Commission to prevent disputes and settle disputes under the agreement.

In reaching his decision, the Senior Deputy President dissented from an earlier decision by Commissioner Bacon on this same question (Print P1035, [1997] 508 IRCommA).

 

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