Mediation by Written Referral
If employees and employers have a 'referral agreement' clause in their enterprise agreement or any other type of written agreement, any of the parties can refer a matter to the Commission for mediation in accordance with that agreement.
The role of the Commission
Under Division 2 of the Employment Dispute Resolution Act 2008 (WA), it is the employers and employees themselves who determine the parameters for the resolution of the dispute by the Commission in accordance with the written agreement. The referral agreement will set out what role the Commission will have, including whether the Commission is able to mediate, conciliate or arbitrate disputes.
A referral agreement can relate to a specific dispute and its resolution, or it can relate to disputes between the employers and employees of a particular type as specified in the agreement.
The Commission will be able to make binding determinations about the scope or meaning of the referral agreement in order to curtail jurisdictional arguments which can prolong the dispute resolution.
If the employer and employees agree to have their agreement registered in the Commission, it will be able to vary the operation of an existing State award, order or industrial agreement. Beyond this, however, the Commission can only make binding orders or decisions when the parties, via their referral agreement, allow it to do so.
If the parties remain in dispute, can the Commission make a binding decision?
The Commission can arbitrate a matter brought through a written referral agreement only if the agreement provides for the Commission to make decisions, orders, give directions or determinations that are binding on the parties. These decisions can be enforced under the Industrial Relations Act 1979 (WA).
What is a written referral agreement?
A written referral agreement is simply an agreement in writing between employer and employee to refer a particular employment dispute (or employment disputes of a particular class) to the Commission for mediation. It can be made when there is no dispute.
What should be in a referral agreement?
A referral agreement should describe the issue or types of issues that may be referred to the Commission and describe what the Commission may do. For example, the Commission may:
- Mediate - which may include:
- a meeting with the Commissioner and the employer/s and employee/s to discuss the issues
- the Commissioner assisting to negotiate an outcome
- the employer and employee asking a Commissioner to consider and appraise the dispute and provide advice on the facts of the dispute, the law and in some cases, the possible or desirable outcomes and how these may be achieved;
- Conciliate - similar to mediation but with the Commissioner taking a more active role;
- Arbitrate - make an order or declaration or other relief; or
- Decide any other issue or question arising in an employment agreement.
When should a referral agreement be made?
A referral agreement can be made at any time. It can be included in an enterprise bargaining agreement to cover future employment disputes generally or particular types of employment disputes or be merely a one-off agreement to cover one particular dispute or a series of particular employment disputes.
How long does a referral agreement last?
A referral agreement comes into force on the day it is made or on a specified date agreed to by the parties.
It remains in force until the expiry date in the referral agreement or, if there is no expiry date, after three years. Parties can agree in writing to withdraw a referral agreement at any time prior to its expiry date by filing a Form M5 - Notice of Withdrawal of Referral of an Employment Dispute.
In mediation proceedings, it is intended that individuals appear in person. If the employer is a company it may be represented by a director, secretary or another company officer. Alternatively, the terms of the referral agreement may determine whether you can be represented. If it does not provide for representation, you may need the agreement of the others involved for you to be represented.
A group of employers or employees can be represented by an individual if the referral agreement says so. If representation is desirable the referral agreement should specify the circumstances in which an individual is entitled to act on the behalf of others.
To appoint a representative, the party seeking to be represented must file a Form M2 - Appointment of a Representative.
Step 1 - Lodgement: a party to a referral agreement may refer an employment dispute to the Commission by filing a Form M4 - Referral of an Employment Dispute to the Commission. You can lodge the form in the Registry of the Commission in person, by email or by post. There is no fee for filing the form.
Step 2 - Mediation conference: After lodging a referral agreement, the Commission will contact you to arrange a mediation conference. The Commissioner will consider the case from both sides and can help the parties make a genuine effort to resolve their employment dispute. There can be one or more than one conferences.
If an agreement is reached to settle the employment dispute, the parties can record their agreement, and the Commissioner may make an order in terms of the agreement if that is agreed.
The order may vary the operation of an existing State award, order or industrial agreement. Alternatively, where the Commissioner dealing with the matter is of the opinion that the nature or subject matter of the agreement does not require an order in terms of the agreement, the Commissioner may issue a memorandum of the terms of the agreement.
If an agreement is not reached, the Commissioner may be able to arbitrate provided that the written referral agreement allows the Commission to make decisions, orders, give directions or determinations that are binding on the parties.