Mediation services 

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.

Benefits

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 person, 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. 

Mediation by Consent

Employers or employees can bring an employment dispute to the Commission for 'mediation by consent', provided that all parties to the dispute consent to the mediation. An employment dispute includes a potential employment dispute.

The role of the Commission

The Commission does not have the power to arbitrate or make a decision in relation to the employment dispute. It also cannot determine the rights or obligations of a party or compel a party to do anything. Instead, the outcome of the mediation is controlled by the parties to the dispute. If an agreement is reached, the Commission may, with the consent of the parties, register the agreement as a mediation settlement agreement which is binding on all parties.

Process

Step 1 - Lodgement: You may make a request for mediation of an employment dispute by filing a Form M1 - Request for Mediation. You can lodge the form in the Registry of the Commission in person, by email or by post.

Informal requests can be made by contacting the Commission online or by telephone, facsimile, email or letter.

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 conferences as necessary.

Possible outcomes

If an agreement is reached, the Commissioner may register the agreement as a mediation settlement agreement, which is binding on all the parties and may be enforced as if it was an industrial agreement under the Industrial Relations Act 1979 (WA). However, such an agreement cannot vary the operation of an existing award, order or industrial agreement.

Mediation by Written Referral

Overview

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).

Written Referral

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:

  1. 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;
  2. Conciliate - similar to mediation but with the Commissioner taking a more active role;
  3. Arbitrate - make an order or declaration or other relief; or
  4. 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.

Representation

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.

Process

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.

Possible outcomes

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.

 

Mediation under a Commonwealth Enterprise Agreement

Overview

Parties to an employment dispute whose employment arrangements are covered by the provisions of the Commonwealth Fair Work Act 2009 (Cth) can also seek the services of the Commission to resolve their dispute.

The Commission can provide a dispute resolution process to parties who are covered by a Commonwealth enterprise agreement if:

  • a party is bound by a Commonwealth enterprise agreement that allows the Commission to conduct a dispute resolution process under dispute settlement procedures set out in the agreement, or;
  • there are no dispute resolution procedures in the enterprise agreement and the parties agree to have dispute resolution conducted by the Commission.

Representation

The terms of the enterprise agreement may determine whether you can be represented.

To appoint a representative, the party seeking to be represented must file a Form M2 - Appointment of a Representative.

Process

Step 1 - Lodgement: A party to an employment dispute may refer it to the Commission by filing a Form 1 - Application to conduct dispute resolution process. 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 conferences as necessary.

Possible outcomes

If an agreement is reached, the Commissioner may register it as a mediation settlement agreement, which is binding on all the parties and can be enforced under the Industrial Relations Act 1979 (WA).

According to the Fair Work Act 2009 (Cth), if the parties have agreed to the Commission’s arbitration, the Commission may do so.

 

 

What to expect from the mediation conference?

  • The Commissioner may hold meetings with the employer and employee together, or with each person separately, to discuss issues related to the situation and each party’s position. It may be necessary for the Commissioner to meet with the employer and employee separately before convening any meetings with them.
  • Each party will have an opportunity to speak and express their view of the matter without being interrupted, and will be able to ask questions and respond to the other party.
  • Each party can express interests and indicate their preferred outcomes.
  • The Commissioner will ask questions to establish all relevant facts, help you look at the situation realistically, identify the real issues in contention and assist you to come up with solutions to settle the dispute.

Representation

Where the parties to the dispute are individuals, it is intended that they be present at the mediation conference in person. However, where a request for mediation is made by a group of employees or a group of employers, the group may be represented by a person who is appointed by the group to act on its behalf.

If the employer is a company, it may be represented by a director, secretary or other company officer.

If you have a written referral agreement, its terms 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.

Frequently asked questions

If an entire group is a party in a dispute, it can assign a person to represent it. To appoint a representative, the party seeking to be represented must file a Form M2 - Appointment of a Representative.

When a matter is brought for mediation, instead of the Commissioner making legally binding decisions, the parties can control the outcome. Moreover, while the Commission can arbitrate only certain industrial matters, it can mediate all kinds of employment-related disputes.

Mediation services are particularly suitable for small businesses. Usually small businesses do not have the range of in-house 'human resource management' staff and given the complexity of the formal industrial relations dispute settling processes, the mediation services at the Commission may be of particular benefit. Through using the Commission’s mediation services, employers, employees and organisations can have more control over how their disputes are resolved.