Alternative Dispute Resolution and Individual Workplace Rights: The Evolving Role of Fair Work Australia

Abstract

This article examines the dispute resolution practices of Fair Work Australia that are evolving to deal with individual workplace rights, as its traditional role shifts away from conciliating and arbitrating collective industrial disputes. The workplace rights enshrined in the 'general protections' provisions in Part 3-1 of the Fair Work Act 2009 protect employees and prospective employees from any 'adverse action' taken against them because they are exercising a workplace right, or because they fall within one of the protected categories, such as the right to be free from discrimination. A broad range of alternative dispute resolution processes is now available to Fair Work Australia in dealing with such disputes. Alternative dispute resolution processes are seen as a way of avoiding costly and time-consuming litigation, and in some circumstances can improve access to justice for individuals. This article explores whether Fair Work Australia is likely to adopt different dispute resolution approaches from its traditional conciliation practices when managing 'general protections' applications, and whether the framework for dealing with these disputes will facilitate fair recognition and enforcement of workplace rights.

Major court and tribunal decisions in Australia in 2015

“…One of the features of the Australian system of industrial relations is that disputes over matters related to individual employment relations and collective industrial relations are made by two very different institutional bodies – the court system determining legal rights under both common law and an extensive set of statutory provisions, and an administrative tribunal, charged with administering certain aspects of the statutory regulation of workplace relations according to the public interest. The historical and constitutional reasons for this bifurcated system are a distraction from this brief summation of some of the most important decisions made in 2015 (but interested readers may find illumination in MacDermott and Riley, 2011: 722–724). While a strictly word-limited ‘nutshell’ of key decisions in a single year can never do justice to an extended argument about the different approaches to decision-making inherent in these two constitutionally different institutions, we think that this distinction is an interesting prism through which to view some of the most significant cases.…”

Resolving individual labor disputes in Kazakhstan in the era of human rights

“…In recent decades, the state has promoted the idea of forming structures for pre-trial consideration of individual labor disputes. Research considers alternative dispute resolution processes as a way to avoid costly and lengthy litigation and in some circumstances may improve access to justice for individuals (MacDermott and Riley, 2011). The main forms of alternative dispute resolution (hereinafter -ADR) in Kazakhstan are currently conciliation commissions for individual labor disputes, while for collective labor disputes ADR forms are conciliation commission, labor arbitration, and mediation.…”

The Relation Between Function and Form in the Main Federal Industrial Tribunals

“…The High Court has been determined to uphold such values, even if the practical effect of some judgments was to diminish the prestige of the tribunals, and even if some of the Court's constitutional interpretations are contentious or inconvenient (see Kirby and Creighton, 2004: 126–33; on the Boilermakers case, see also Zines, 2008: 216, 295). 5 Further, the manner in which the main federal tribunals have themselves pursued rule-of-law values has garnered respect and imbued the Australian concept of an industrial ‘umpire’ with moral force (for three inspiring papers in this direction, see Kirby, 2004; McCallum, 1996; Munro, 2006).…”

“…It argued that the exclusion of lawyers might negatively impact on FWA's ability to define the issues, and be counterproductive in terms of ‘efficiency, public costs, opportunity costs and emotional costs’ (Mourell and Cameron, 2009: 72). 11 In terms of the representation of employees by trade unions in the tribunals, we must consider a number of factors, including the evolution of functions within the tribunals and the changing regulatory role of unions in the industrial relations system generally (see Gahan, 2006; Hawke, 1956: 448, McCallum, 1996: 306–7; Sawer, 1952: 310). The Workplace Relations Amendment (Work Choices) Act 2005 not only limited the opportunity for collective action, but sought to individualize representation rights (e.g.…”