Under the Employment Dispute Resolution Act 2008 (WA), the Commission provides free employment dispute resolution in the form of mediation. If all parties to the dispute agree, you can bring any industrial matter to the Commission for mediation.
What is mediation?
In the context of the Commission, mediation is a conference conducted by a Commissioner who considers the case from both sides and can help the parties make a genuine effort to resolve their employment dispute. The main advantage of participating in mediation is that it provides the opportunity for parties to reach a mutual resolution of the matter without the need to participate in formal legal proceedings.
Voluntary: For mediation to take place, each employer and employee involved (or likely to be involved) in the employment dispute must consent to the Commission acting as mediator. You only take part if you want to and you can withdraw at any time.
Free and fast: Mediation avoids the time and expense of instituting and being involved in legal proceedings.
Control by the parties: The employer and employees control the outcomes. Any settlement will be on terms agreed by the employer and employee.
Impartial: The Commissioner who acts as your mediator will not take sides, make any judgement or require you to do anything. You have the opportunity of using the assistance of an impartial third party (the Commissioner).
Location: Mediation can be held at the Commission, which has conference rooms, meeting rooms, telephone conferencing and video links. It can also be held at any place the employer and employee agree is suitable, providing that sufficient meeting rooms and resources are available.
Recommendations from the Commissioner: If the employer and employee request, the Commissioner may make recommendations about aspects of the employment dispute. Mediation can be helpful since the Commissioner can provide a review of the positions taken and foster new ideas to resolve a deadlock. Through mediation, you can use the expertise of the Commission in dispute resolution at no cost.
Confidential: Mediation is held in private and the Commission may give directions to the persons who may be present. No evidence or matters contained in documents lodged with the Commission may be published or disclosed unless the Commission makes an order.
Settlement: If the employer and employee consent, their agreement may be registered under the Industrial Relations Act 1979 (WA) and it may be enforced in the Industrial Magistrates Court as if it were an industrial agreement registered under that Act.
What kind of matters can the Commission mediate?
The Commission can mediate any employment-related dispute. Employers, unions and employees may use the mediation service for any question, dispute or difficulty that arises out of, or in the course of, employment in their workplace. Therefore, matters referred to the Commission for mediation are not confined to the traditional meaning of 'industrial dispute'.
The Commission can mediate disputes that fall under the Commonwealth jurisdiction as well as matters under State jurisdiction.
When employers (and their employees) who would otherwise be in the Commonwealth jurisdiction request the Commission for mediation, the Commission may only perform the functions which the employer and employees agree it can perform, whether it is simply mediation, or whether it goes further into conciliation or arbitration, and even with a right to appeal.
Who can bring a matter for mediation?
- an employee or group of employees
- an employer or group of employers
- an organisation of employees or employers
Pathways to mediation at the Commission
Mediation by consent: If the employer or employee do not have a dispute resolution procedure in their enterprise agreement or other forms of agreement that would allow the Commission to mediate, they can still bring a matter for mediation by consent, which means that both parties should agree to the mediation.
Mediation by written referral agreement: An enterprise agreement can include a 'referral agreement' clause which allows any party to the agreement, by consent, to refer a matter to the Commission. In doing so, it is the employers and employees themselves who determine the parameters for the resolution of the dispute by the Commission.
Mediation under Commonwealth Enterprise Agreement: Parties to a Commonwealth enterprise agreement may include in the agreement a dispute resolution procedure that allows the Commission to deal with disputes.