This best practice guide is for employers and managers. It explains how you can use best practice to avoid, manage and resolves disputes in your business. Show
It also has practical tips and case studies to help you move your business towards best practice. Download the best practice guide:
Working at best practiceDisputes and complaints can happen at any workplace. A dispute exists when one or more people disagree about something and the matter remains unresolved. Often disputes can be settled quickly and informally in the course of everyday work. However, if people can’t agree on a way forward or if the dispute is about a serious matter, you might need a more formal approach. Best practice employers have simple, fair, confidential and transparent dispute resolution procedures in place. These employers take disputes seriously and address issues quickly and effectively, so they don’t escalate. Every workplace can enjoy the benefits of taking a best practice approach to dispute resolution. These may include:
Dispute resolutionDispute resolution is how disputes are brought to an end. This can occur through:
Disputes can happen for many reasons, including:
Understanding the causes of conflict will help you to avoid disputes. See An employer's guide to resolving workplace issues at fairwork.gov.au/employer-guide or visit our Workplace problems page at fairwork.gov.au/workplace-problems for tips on how to identify and resolve workplace issues. Legal requirements under the Fair Work ActEmployees have access to the dispute resolution procedure set out in the award or agreement that covers them. This procedure can be used to settle disputes related to that award or agreement, or to the National Employment Standards. AwardsDispute resolution clauses can vary between awards, but generally have a similar approach to resolution procedures, including: 1. Resolution within the workplace
2. Resolution outside the workplace
If the dispute still isn’t resolved, the Fair Work Commission can use any method of dispute resolution permitted by the Fair Work Act that it considers appropriate to ensure the dispute is settled. Enterprise AgreementsThe parties to an enterprise agreement agree to a dispute resolution procedure during the bargaining process. Before approving an enterprise agreement, the Fair Work Commission must check that it contains a dispute resolution clause which:
The Fair Work Regulations provide a model dispute resolution term that can be included in enterprise agreements. See the Links and resources section in this guide for more information. Check your award or agreement to see what dispute resolution process applies to your workplace. Visit www.fairwork.gov.au/employment-conditions For more information on how the Fair Work Commission can assist with disputes at work see www.fwc.gov.au/issues-we-helpUsing best practice to avoid, manage and resolve disputes at workThe best way to handle a workplace dispute depends on the people affected and the nature of the conflict. For example, a dispute about someone’s pay should be dealt with differently to a dispute involving a group of employees about proposed changes to their working hours. Below are initiatives and suggestions that can help you implement a best practice approach to managing disputes. Recognise the signs of conflictBest practice employers can identify and address the signs of conflict. By seeing the signs early, they have a better chance of resolving the conflict before it turns into a dispute. Sometimes the signs of conflict can be obvious (for example, if you observe an argument in the workplace). Not all forms of conflict are so visible. Signs of conflict may include:
Encourage open communicationWhatever the size or nature of the business, employees need to know who to speak to about their issues or grievances, and what action will be taken to attempt to resolve them. Encourage employees to communicate their problems openly, honestly and respectfully. Managers need to know how to prepare for these conversations, what to say, how to listen and how to explore ways to resolve the issue.
Jamila works in a café. She thinks there might be a problem with her pay and tries to speak with her manager. The manager says Jamila’s pay is correct, but that she doesn’t have time to talk about it. Jamila feels frustrated and distracted at work. She is still unsure about her pay and is now upset with her manager. Her manager notices Jamila’s performance has declined but is unsure why. A few weeks later Jamila contacts the Fair Work Ombudsman, who check her award classification and explain that her pay is correct. While Jamila’s employer wasn’t doing anything against the law, this issue could have been avoided if she had taken the time to talk Jamila about how she had determined the correct pay rate. When preparing to talk to an employee about issues in the workplace, managers should consider the following questions:
During the conversation, remember to:
Manage changeMany disputes occur when there has been a change in the workplace. Change can have a significant impact on employees, especially if it was unexpected. It can leave them uncertain or even anxious or afraid about what the change will mean for them, which can lead to misunderstandings and disputes. Good communication and a consultative approach can help to minimise conflict. Create a strategy to communicate with employees about change. Consider:
Remember that if the change is significant, there might be specific communication and consultation requirements in your award or enterprise agreement. Even if you aren’t legally required to, consider consulting your employees about changes in your workplace as a matter of routine. Consulting with your employees gives them a stake in the decisions being made. Best practice employers regularly share information with employees about the performance, goals and challenges of the business. This can help employees to see the whole picture and minimise disputes when change is required. For more information, see our Consultation & Cooperation in the Workplace Best Practice Guide, available at www.fairwork.gov.au/bestpracticeguides. Put things in writingHaving written contracts of employment and clear workplace policies make entitlements and rules clear for everybody. This could save you time and money that might otherwise be spent sorting out misunderstandings, resolving disputes or even defending claims in a tribunal or court.
Many workplace documents can become out of date over time. To stay on top of this:
Train managers and employees on how to resolve disputesMake sure your managers understand your dispute resolution process. People will be influenced by their own background, experience and communication skills when resolving disputes. However, you can help managers work at best practice by providing training and coaching on:
You should also tell employees about your dispute resolution process during induction training and other staff communications. Make it clear that if there is a dispute employees are expected to:
Dispute resolution shouldn’t interfere with day-to-day work. While the process is underway, employees should continue to comply with the employer’s directions and perform any work that is safe and appropriate. Create a simple dispute resolution processWhatever the size or type of business, the best dispute resolution processes will:
A good dispute resolution process promotes fairness. If people feel they are fairly treated, then it is more likely that they will be engaged in their work and motivated to contribute. Proactively manage complaintsDealing with complaints may seem time consuming and frustrating but knowing about the issues that upset your employees can have significant benefits for your business. It lets you fix problems before they escalate, and better protect your business from risk. For example, in dealing with a complaint you might identify that a policy isn’t as clear as it should be. This gives you an opportunity to fix it and potentially avoid future disputes. Practical Tip:
If you haven’t been able to resolve the issue internally, you may want to ask a third party to assist. The approach you choose will depend on the issue you’re trying to resolve. Industry associationYour industry or business association can provide you with tailored advice and assistance to help you understand your rights and obligations. A list of unions and employer associations formally registered under the national workplace relations system can be found from the Registered Organisations Commission at www.roc.gov.au/find-a-registered-organisation. There might also be other industry and business bodies in your area that can help.Requesting assistance from the Fair Work OmbudsmanYou or your employee may choose to request assistance from the Fair Work Ombudsman. You can ask for our help with a workplace problem on our website by making an online enquiry through My account. When we receive an enquiry, we review it and get back to you. When we receive a report about a workplace dispute or issue, we assess it to decide how we will respond. This can include:
For more information visit www.fairwork.gov.au/fixing-workplace-problems. Legal avenuesYou or your employee can seek legal advice from a legal representative at any time. They may be able to assist you with a range of actions, including providing advice about your rights and responsibilities to your employees. To find a solicitor, visit the law institute or law society within your state or territory. To find a community legal centre go to the Australian Community Legal Centres website available at www.clcs.org.au.Your employee might choose to take legal action. The small claims process under the Fair Work Act can be used to recover employee entitlements or other debts up to a maximum amount of $20 000. The small claims process is quicker, cheaper and more informal than regular court proceedings. The aim is to settle disputes quickly and fairly, with minimum expense to the parties. For information about small claims, go to www.fairwork.gov.au/smallclaims. MediationIf you haven’t been able to resolve the workplace issue with your employee, an accredited mediator might be able to assist you. Generally, mediation is a voluntary process, so both you and your employee must agree to mediation. Dispute resolution procedures in an enterprise agreement or contract may require the parties to mediate. Mediators don’t take sides, give advice or decide who’s right or wrong. They help you work through the issues and reach a solution that everyone can accept. Some community organisations and private dispute resolution providers offer free or low-cost mediation services. For some matters, the Fair Work Commission may be able to assist through an informal mediation process. You can find more information about mediation at the Fair Work Commission at www.fwc.gov.auConciliationConciliation is very common in workplace disputes and is undertaken in most unfair dismissal cases in the Fair Work Commission. Conciliation is a voluntary process to help an employer and employee resolve an unfair dismissal dispute. The process allows each party to negotiate in an informal setting to identify if there is a solution to the issue. Conciliation is very similar to mediation except that the conciliator:
You can find out more about the conciliation process through the Fair Work Commission at www.fwc.gov.au.ArbitrationArbitration is a less common way of resolving workplace disputes. What makes arbitration different from other types of dispute resolution is that the parties agree that an independent and impartial person (the arbitrator) will listen to each side and then make a decision that’s binding on everyone. Best practice checklistA best practice workplace involves more than just understanding and complying with the law. This checklist will help you work at best practice when managing disputes and complaints within your business:
Links and resourcesResourcesTo learn more about effective dispute resolution: You can access our free online training for employers and managers at www.fairwork.gov.au/learning. Available courses cover best practice approaches to difficult conversations in the workplace, hiring employees, managing employees, managing performance, diversity and discrimination, workplace flexibility and record-keeping and pay slips. You can find all our Best practice guides at www.fairwork.gov.au/bestpracticeguides. These easy-to-follow and practical guides will help you transform your business from compliant to best practice, so you can get the most out of your employees. LinksFair Work Commission Enterprise agreement model term for dealing with disputes, Fair Work Regulations 2009, Regulation 6.01 available at www.legislation.gov.au/Details/F2021C01029 |