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TAFE Hunter Institute

BSBWRK509A Notes Pack 1

Manage Industrial Relations

BSBWRK509A

Notes Pack 2009



Element 1 – Develop Industrial Relations Strategies and Policies

(Text Reference Understanding Australian Industrial Relations 7th Edition Alexander, Lewer and

Gahan. Pg 233-267.

Human Resources Management Strategies and Processes 6th Edition Nankervis, Compton and

Baird Pg 70 to 106.)

Overview

The management of an Organisation will need to determine what Industrial Relations Strategies,

Policies and Plans are required to optimize the organisation’s performance and assist it in

meeting its objectives. The way in which an organisation develops and implements these

strategies, policies and plans will depend upon a number of factors including organisation, size,

industry, industrial climate, union representation etc. Some organisations will have a

comprehensive pro-active formal planning process which looks forward 2-5 years, other

organisations may deal with industrial relations on an informal and reactive basis. Managers,

representing the interests of employers, influence the industrial relations environment within

organisations through their management practices and policies. They need to be accountable for

the effectiveness of the industrial relations policies of that organisation.

Key terms

Australian Workplace Agreements

AWAs individual agreements made between an employer and a single employee. An alternative

to common rule Awards, able to tailor terms and conditions for workers to link them to

productivity gains for the particular workplace or industry

Certified Workplace Agreements (Enterprise Agreement, Collective Agreement)

Collective agreements made directly between an employer and employees or between an

employer and a union(s). An alternative to common rule Awards, able to tailor terms and

conditions for workers to link them to productivity gains for the particular workplace or industry

Grievance procedure

A formal procedure that enables employees to know when and how to air their grievances.

PEST analysis



An examination of the influence of Political, Economic, Social and Technological factors on an

organisation.

SWOT analysis

An examination of the impact that the Strengths and Weaknesses of an organisation, and the

Opportunities and Threats it faces, have on the organisation and its future directions.

1.1 Analyse strategic plans and operational plans to determine long term industrial

relations objectives.

Business Planning – Organisational goals and objectives

Most organisations will conduct business planning activities to identify the organisation's

strategic and operational plans for its long term objectives. Once this is established the

Management team can then develop and implement Industrial Relations strategies that will assist

the organisation in achieving this business plan.

The company’s goals, objectives, attitudes and philosophy will therefore directly influence the

industrial relations relationship and activities within organisations.

In order for a company to achieve its goals, it needs motivated and effective staff. An effective

management team not only possesses the ability to effectively manage, but also understands its

approach to industrial relations issues.

Management’s primary role is to obtain a certain level of physical/mental work effort from

employees. Management needs to ensure that employees are:

• performing the work they have been hired to do

• to the required standard

• at the required pace.

We need to think, therefore, about the organisation within its environment and industrial relations

in the context of managerial activity. The organisation’s industrial relations policy will reflect its

specific industrial relations needs and strategic goals.



Business Planning Activities

PEST analysis

Strategic and operational plans need to recognise the influences acting on the organisation – both

inside and outside its control. One way to identify these influences is through a PEST analysis.

A PEST analysis examines the following factors and their influence on their organisation:

1. Political

2. Economic

3. Social

4. Technological

Political factors may include legislation, such as EEO and anti-discrimination laws, the agenda of

the government, national (and international if applicable) government policies on interest rates,

employment rights, the position of the trade union and occupational health and safety.

Economic factors may include the influence of interest rates, the expectations and level of

confidence in the state of the economy, and the state of the market, whether expanding or

contracting.

Social factors may include the level of unionisation and other associated social, ethical or

religious pressures that may affect the operation of the organisation.

Technological factors may include the effect of technology on occupations and work patterns,

and training for work activities.

Think about the organisation for which you currently work. Do a PEST analysis for it

concentrating on the present environment within Australia. You only need to list the two most

important influences within each category.



SWOT analysis

The other method used to analyse the environment and the organisation's position within it is a

SWOT analysis.

• Strengths – factors that enhance the organisation’s performance and reputation

• Weaknesses – factors that reduce the organisation’s performance and reputation

• Opportunities – factors that the company can use to expand or develop

• Threats – factors that may cause an organisation to decline.

1.2 Analyse existing industrial relations performance in relation to strategic industrial

relations objectives.

Industrial Relations Climate and Performance Indicators

Prior to determining the key components of an organisation’s industrial relations policy it is important to analyse the organisation’s existing industrial relations climate. This analysis can be completed by looking at a number of different performance indicators including:

• Industrial action taken

• Absenteeism

• Turnover

• Grievance Handling

• Labour costs

• Productivity

• Quality

• Performance against previous Industrial Relations Objectives

Another part of the analysis of the current environment could be qualitative, including gathering feedback from key stakeholders through surveys, group discussions or one on one meetings.

A model for assessing the industrial relations climate in the workplace is also included in your text – ‘Understanding Australian Industrial Relations on Pg 247.



1.3 Evaluate options in terms of cost benefit, risk analysis and current legislative

requirements.

Cost Benefit Analysis

This analysis, as the name suggests, involves looking at a suggested course of action and listing

the benefits of this action and the costs of the action. The purpose is to make a decision on

whether to proceed with the course of action. You would proceed if you believe the action is

justified given the costs involved. Cost and benefits could be quantitative or qualitative. E.g.

Look at the cost of implementing a bonus payment system compared to the benefits it would

bring.

Risk Analysis

This involves drawing up a risk management plan to identify how likely an IR event (or some other event that will affect IR) will have a negative effect on the organisation achieving its objectives. What too would be the likely consequences on the organisation's performance?

Legislative Framework

The Industrial Relations and Legislative framework in Australia is constantly changing. A

challenge for organisations in to ensure their Industrial Relations plans are consistent and comply

with the current legislative and industrial relations framework.

Fair Work Australia

The current labour government has introduced new federal IR legislation titled ‘Fair Work

Australia’.

The following changes have occurred under the Workplace Relations Amendment (Transition to

Forward with Fairness) Act 2008.

• Award Modernisation has commenced.

• Public consultation on the 10 National Employment Standards (NES).

• Replaced old fairness test for workplace agreements with the no disadvantage test.

Fair Work Act 2009 Division 2 - The National Employment Standards

61 The National Employment Standards are minimum standards applying to employment of employees



(1) This Part sets minimum standards that apply to the employment of employees which cannot be

displaced, even if an enterprise agreement includes terms of the kind referred to in subsection 55(5).

Note: Subsection 55(5) allows enterprise agreements to include terms that have the same (or substantially

the same) effect as provisions of the National Employment Standards.

(2) The minimum standards relate to the following matters:

(a) maximum weekly hours (Division 3);

(b) requests for flexible working arrangements (Division 4);

(c) parental leave and related entitlements (Division 5);

(d) annual leave (Division 6);

(e) personal/carer’s leave and compassionate leave (Division 7);

(f) community service leave (Division 8);

(g) long service leave (Division 9);

(h) public holidays (Division 10);

(i) notice of termination and redundancy pay (Division 11);

(j) Fair Work Information Statement (Division 12).

Areas of the FWA organisations need to pay key attention to are:

• Unfair dismissal changes, particularly relating to redundancy and restructuring

• Transmission of business

• Refusal to bargain

• Good faith bargaining, protected action and arbitration

• Compulsory bargaining and arbitration for the low paid

• Injunctions to enforce awards and enterprise agreements

• Award Modernisation

• Increased right of entry powers by unions

1.4 Establish industrial relations strategies/policies with the management team.

Once the organisation has developed its Business Plan and has assessed its current Industrial

Relations climate it is time to develop and implement IR Policies, initiatives, practices to support

this.

Industrial Relations Policy

An Industrial Relations policy is normally a document or statement outlining the approach the organisation will take to industrial relations. It usually states the overall purpose and objective and provide details of the steps the organisation will take to achieve this purpose.



Below is an example of an organisation’s industrial relations policy. Four important aspects have

been identified:

1. Communication

2. Involvement

3. Education

4. Planning

Communication

Communication is very important, as it allows for the free flowing of information between the

employer and employees. The employer should establish clear communication channels and

procedures. These channels may include formal memos or newsletters emailed to all staff.

Procedures may include a formal staff meeting attended once a month by the general manager.

Involvement

All staff need the opportunity to become involved in the organisation. This may be through

committees, such as a health and safety committee, or through special committees formed to

discuss the implementation of proposed changes that will directly affect them.

Education

In order for the organisation to achieve its strategic and industrial relations goals, it needs to

provide its staff with the opportunity to access training and professional development. Staff

should be encouraged to complete training, and they should be rewarded for their efforts – either

through the possibility of career progression, or through recognition of their achievements via job

enhancement programs.

Planning

Planning is required to deal effectively with any industrial relation issues that may arise within

the organisation. Planning is usually undertaken either by the industrial relations specialist within

the organisation or a senior member of the HR/management team. It is important to have policies

and procedures in place to effectively deal with issues such as grievances and industrial conflict.

Today, many organisations realise the need to tie their industrial relations strategies into their

operational plans and activities. Employers realise that in order to more effectively achieve their

organisation’s strategic goals they need a committed workforce who can see the benefits of

cooperating with their employers.



Industrial Relations Strategies

An organisation will normally identify a number of industrial relations strategies, which are long terms plans and objectives. They will state what it is an organisation is trying to achieve.

Examples could include:

• Reduce industrial action.

• Be an employer of choice.

• Increase productivity.

• Reduce absenteeism.

• Increase employee morale.

Industrial Relations Plan

An industrial relations plan provides more specific information on the steps that will be taken in support of the organisation’s Industrial Relations Policy and Strategies. It will identify specific actions and activities, allocate these responsibilities to a dedicated resource and indicate timeframes for completion. These actions might be one off projects (e.g. implement flexible working policy) or activities that will occur on a regular ongoing basis (e.g. consultative committee meetings). Organisations will normally develop these plans on an annual basis and constantly review them throughout the year. The plan therefore states ‘how’ the organisation is going to achieve the strategies.

Example – Model Industrial Relations Plan

Industrial Relations Plans spell out clearly:

• Column 1 The areas addressed by the plan

• Column 2 The actions to be taken within that area of the plan

• Column 3 The person responsible to complete this action i.e. the Responsible Officer

• Column 4 The date required for action to be completed.

• Column 5 Evaluation of the action.

Table 1: Industrial Relations Plan showing area, action, responsible officer, completion date and

evaluation (5 cols)

Area Actions Responsible

Officer

Completion Date Evaluation

In-house

Communication

1. Monthly staff

newsletter

Human

Resources

All three

commenced by

1. All actions

implemented by




Officer


2. Weekly email

bulletins

3. Daily toolbox

meetings

Manager 01/07/0X due date

2. All actions

completed daily,

weekly and

monthly as

required

3. Feedback

from all

stakeholders is

positive

Consultative

Committee

1. Consultative

committee

nominations from

staff and

management

2. Committee

created

3. Constitution

agreed upon

4. Meeting

schedule agreed

5. Meetings

commence and

conducted

regularly

Human

Resources

Manager

1. Nominations

called and

received by

01/07/0X

2. Voting

completed if

necessary by

08/07/0X

3. Committee

convened by

15/07/0X

4. Constitution

agreed 29/05/0X

5. Meeting

schedule agreed

29/05/0X

1. All actions

implemented by

due date

2. Meetings

conducted

regularly and to

schedule

3. Feedback

from members

of committee,

staff and

management is

positive




Officer


Negotiate

Industrial

Agreement

1. Management

to draft outcomes

required of the

agreement

2. Management

‘costs’ agreement

3. Inform staff

and unions of

desire to create

industrial

agreements

4. Negotiate

with staff

5. Reach

agreement

6. Distribute to

all staff in

community

languages

7. Sign

agreement with

cooling-off

period

8. Ongoing

evaluation of

outcomes

Human

Resources

Manager

1. Draft

outcomes by

01/07/0X

2. Costs

calculated by

05/07/0X

3. Inform staff

of negotiations

by 12/07/0X

4. Commence

negotiations by

19/07/0X

5. Reach

agreement by

31/08/0X

6. Distribute to

staff by 05/09/0X

7. Finalise

agreement by

30/09/0X

1. Cost benefit

analysis

indicates

positive

outcomes

2. Negotiations

are amicable

3. Target dates

are met

4. Feedback

from

stakeholders is

positive

TAFE NSW – Diploma HR


Industrial Relations Initiatives

An initiative is an idea or action that has been identified because people believe it will help the

organisation meet its objectives, solve a problem, improve performance etc. Below are some

examples of initiatives an organisation might implement. These initiatives are normally

incorporated into the Industrial Relations Plan.

Example one

A company wants to increase performance within the workplace. To encourage productivity,

employees receive an annual salary supplemented by access to productivity and sales bonuses.

Access to these bonuses has increased employee motivation and performance, and has provided

increased productivity for the employers.

In this example the Industrial Relations Strategy is to increase performance within the workplace. The initiative is to implement productivity and sales bonuses.

Example two

A company operates seven days a week, 12 hours a day (7am to 7pm). An AWA was signed by

employers and employees, providing flexible work arrangements, which took into consideration

the business needs of the organisation, customer needs and employee preferences.

An employee had a specific need to set hours and days to meet with a TAFE timetable. The

employer was happy with this arrangement and was able to roster the employee to work at times

that had traditionally been hard to fill. In this instance, the employee was able to continue

studying whilst the employer was able to overcome rostering and staffing issues.

Both examples have been adapted from those contained in the www.employment.gov.au website.

There may be a number of signals that your business is ready to develop a formal workplace

agreement. These may include:

1. The organisation has developed formal strategic plans and goals for the medium-term.

2. It has become clear that certain award provisions are not flexible enough to suit the

organisation’s requirements.

3. The business has been experiencing specific problems, such as high turnover, high rates

of absenteeism or difficulty recruiting. These may be addressed through a more systematic and

formal approach to setting terms and conditions of employment.

4. You have identified that the organisation will benefit from establishing a clearly

documented system of rewards for its employees.



1.5 Identify the knowledge and skills needed by Management and the workforce to

effectively implement these strategies/policies.

To ensure the successful implementation of your IR Policy, Plan and Strategies it is important to identify the knowledge and skills needed by Management and the workforce.

Example 1: If the IR Policy states that it would like to encourage communication between employees and management. Its Plan might state that they will establish a Consultative Committee. You may identify that Management and Consultative Committee members need training in effective communication and running meetings. You would also need to educate the rest of the workforce on the purpose of the Committee and what it is intended to achieve.

Example 2: If an IR initiative of a Company is to implement National Competency Standards it would be important to ensure the relevant people are trained in the National Competency Framework and the process for implementation.

Roles and Responsibilities

Each organisation will have difference processes, structures and resources for managing

workplace industrial relations. In general the two main internal resources an organisation may

utilise to manage industrial relations are management and industrial relations specialists.

Management: are fundamentally responsible for developing and implementing business

strategies and plans and managing employee relations on a day to day basis. Must ensure that

their actions comply with legislative requirements.

Industrial Relations Specialists: provide specialist advice and education to managers and

employees on legislation, policy and strategy development, resolving workplace conflict. This

role is usually part of the Human Resources team.

An organisation may also seek external assistance from employer associations and legal firms.



Element 2 – Implement Industrial Relations Strategies and Policies

2.1 Develop an implementation plan and contingency plan for the industrial relations

strategies/policies.

Once you have developed the IR Policies and Strategies it is important to determine the best approach for the implementation. Things to consider are:

• How will you make people aware of the policies and strategies – e.g. communication meetings, email, intranet, procedure manuals, workshops.

• What is your timeframe for implementation? Do certain things need to happen before other items can be completed?

• Who will be responsible for implementing the plan?

• What specific training is required and when should it be done?

Once this has been decided it can be outlined in an Implementation Plan or Project Plan (similar format to the IR Plan outlined previously).

This plan may also identify the risks associated with implementing the plans and alternative courses of action should obstacles arise (e.g. contingency plan).

2.2 Make arrangements for training and development in accordance with identified needs,

to support the industrial relations plan.

In the planning process you should have identified the training required to successfully implement your plan. You will also have included this in your implementation plan. Now is the time to organise it. You will need to consider:

• Who will run the training.

• Where it will be held.

• Who needs to attend.

• Cost and timings.

• Objectives of the training – what form of training will be most effective e.g. classroom courses, one on one coaching, on the job training.



2.3 Undertake associated industrial relations activities to agree to changes required by

policies or implementation plan.

Associated activities could include:

• clarification of terms and conditions of employment of those people affected.

• consultation with employee representatives

• obtaining legal or specialist advice

These activities may be included as part of the implementation plan.

2.4 Ensure procedures for addressing grievances and conflict are properly documented.

2.5 Communicate key issues about procedures for addressing grievances and conflict.

When implementing change in the workplace it is common to face objection, concerns and obstacles during the implementation process. You may also work out during implementation that an initiative or course of action may not be as successful as you originally thought.

It is therefore important to set up systems to address issues that may arise from the implementation of your IR Strategies and Policies. Grievance procedures is covered further on in your notes pack. By setting up these systems it will also give you the opportunity to collect feedback from your workforce on the changes being implemented.

By communicating these procedures to the workforce it allows them to understand how they can have their say and that their concerns will be duly considered and taken into account.

Tips for Successful Development and Implementation

It is one thing to be able to develop a sound Industrial Relations strategy, policy, plan, initiative it is more difficult to ensure it is successful implemented and supported by employees and management within the organisation.

It is therefore important that when developing and implementing any plan, strategy and initiative that adequate planning, consultation and education is done.

A key to successful implementation is to consult with employees and unions throughout this process. Consultation allows an organisation to gather valuable feedback and information and generate interest and ownership from employees and unions.



Element 3 – Manage negotiations, conflict and disputes.

Overview

In Australia, most organisations adopt the pluralist approach to industrial relations where it is

recognised that conflict between employees and employers is inevitable due to differing views,

objectives and personalities of employees and employers. Workplace conflict can have a

negative affects on an organisation’s efficiency and productivity. The goal then is to ensure an

organisation has the right strategies, plans and policies in place to manage and resolve conflict in

the workplace.

Poorly managed conflicts and grievances can result increased levels of absenteeism, low worker

moral, reduced levels of productivity and a higher staff turnover. To manage conflict effectively,

the management team first requires the skills to identify potential grievances or conflicts.

Processes to resolve these issues must be in place and effective and it is important to have an

identified person or persons within the organisation to take responsibility for managing these

issues. A formal procedure must also be in place so employees know how and when to air their

grievances.

Key terms

Conciliation

A process of suggesting options for a solution or paths to a solution to solving a dispute.

Grievance procedure

A formal procedure that enables employees to know when and how to air their grievances.

Mediation

A process of negotiating a mutually agreed solution between parties involved in a dispute, where

the mediator is neutral and makes no proposals and provides no advice.

Procedural fairness

The process is fair.

Substantive fairness

The final decision is fair.



3.1 Train individuals in conflict management techniques/procedures

There are a number of different conflict management techniques/procedures that people can use to resolve conflict in the workplace. Some of these methods are internal to an organisation and others are external and within the legal system. Some include:

• Internal Dispute Resolution Procedures

• Conciliation

• Mediation

• Negotiating

• Arbitration

It is important that you have people within the workplace who are trained in these techniques and procedures so conflict can be managed effectively when it arises. Organisations may nominate people within their organisation who will be responsible for conflict. Examples may include:

a) Managers

It is an inevitable part of any manager’s job that you will, at some time, need to resolve a conflict

situation in your workplace. You may face conflict with:

• differences between employees

• laying off key employees

• challenging customers

• motivating unproductive staff

• helping employees perform at a higher level.

There are a number of different ways that conflict is expressed within the workplace – it may be

through the use of strikes, an increased level of absenteeism, and increased levels in staff

turnover.

It becomes an important management skill to identify the potential conflict, and provide methods

for the early resolution of conflict, for example, through a grievance procedure. More

importantly, you need to possess the skills to manage these forms of conflict.. Managers are often

the first point of contact for someone with a grievance so it is important that they know what they

are doing.

b) Human Resources Practitioners/IR Specialists

The HR team will ordinarily be the area Managers and employees go to, to get specialist advice on how to manage conflict internally or externally. It is therefore important that members of the



HR team have a strong understanding of the principles of conflict management and understand the avenues available under legislation to resolve conflict.

c) EEO Officers

Organisations may have dedicated EEO officers whose role is to manage any grievances related to potential discrimination or harassment. The people in these roles will need a good understanding of conflict management techniques as well as EEO legislation.

Conflict management skills

Conflict management skills include

• negotiating skills

• conciliation and mediation skills

• an awareness of controlling difficult situations using legal remedies

• knowledge of your own responsibilities

• who you need to notify

• the ability to work within specified time frames.

When you undergo conflict management training, you need to examine issues such as:

• understanding how conflict impacts on yourself and others

• encouraging the development of effective problem solving skills

• communication skills required to address conflict

• skills to resolve a dispute in a productive way

• legal avenues available to you, should the conflict escalate (eg industrial disputes).

Along with a formal grievance policy, conflict management training can concentrate on providing

employers with skills in conciliation and mediation. Both methods can be used to help resolve a

conflict or dispute between two parties.

A number of methods could be used to train individuals in conflict management techniques/procedures including:

• Classroom Courses

• Practical Workshops – case studies, scenarios and role plays

• One on one coaching

• Attending legal seminars



3.2 Identify and where possible alleviate or eliminate, sources of conflict or grievance in

accordance with legal requirements.

Strategies to monitor the workplace so that conflict can be identified and resolved quickly

include:

• formal grievance policies and procedures

• effective communication channels

• effective relationships between employers and employees

• training and professional development for supervisors in effective conflict resolution

techniques.

Note that often workplace grievances and conflicts are not visible and raised directly with

management until late in the process. The later it is identified the harder it is to manage.

Types of industrial conflict

Industrial action

Strikes are the most visible form of conflict and create the most impact. The Australian

Workplace Relations Act 1996 recognises the legitimacy of industrial action during the course of

enterprise negotiations. In this instance, industrial action includes any worker activity that

restricts or delays work, such as:

• bans, where employees decide not to perform certain activities

• work-to-rule, where employees only perform the tasks that are stated within their job

description

• go-slow campaigns, where employees dramatically slow down the pace of their work.

Strategies to reduce industrial action include:

• developing a culture that encourages communication between employers and employees

• developing a formal, trusted grievance policy to help quickly identify grievances and

potential sources of conflict

• developing a more positive relationship between employers, employees and their

respective unions.



Absenteeism

The most common way employees respond to unsatisfactory working conditions or a stressful

work environment is through absenteeism. A high level of absenteeism can cost the organisation

significantly. The two types of absenteeism are:

1. involuntary absenteeism, mostly due to illness

2. voluntary absenteeism, which may be due to a variety of reasons such as the individual’s

attitude to work, their personal level of job satisfaction or organisational issues, such as stress,

conflict, and the nature of their work.

Strategies to manage absenteeism include:

• allowing supervisors more flexibility and discretion in the absence of management

• providing opportunities to employees to multiskill or job enlarge

• providing opportunities for employee participation in areas such as decision-making, fair

treatment and job security

• improving communication between employers and employees so that employees

understand the tasks they are expected to do at work

• providing employees with a career path and promotional opportunities

• improving the relationship between management, unions and employees.

Strategies to address labour turnover

Labour turnover

Absenteeism and labour turnover are related, as they are both forms of withdrawal from the

organisation. Absenteeism is a temporary withdrawal while turnover is permanent. Often a

person’s dissatisfaction with his or her job begins with absenteeism, which progresses over time,

combined with an increasing sense of dissatisfaction, resulting in a decision to leave that

company.

1. encouraging organisational commitment through the use of reward and recognition

programs, career paths and reducing work-related stresses

2. providing applicants at their interview with a clear idea of what the job will involve

3. initiating methods to improve the level of job satisfaction through, for example, multi-

skilling and job enrichment



4. providing competitive wages and benefits packages.

Ideally, for performance gaps to be closed, the concept of mutual commitment needs to be

implemented.

Grievances

Grievances arise in the workplace when one person believes they have been treated

inappropriately or unfairly by an action taken by another. Grievances might affect one individual

or a group of people.

There are 3 levels people evaluate fairness: (pg 285 Understanding Australian Industrial

Relations)

Distributive justice: are the rewards of the organisation distributed fairly (e.g. pay, bonuses).

Procedural justice: are decisions transparent and consistent with policies, procedures and

legislation?

Interactional justice: are people treated with respect and given the opportunity to express their

views?

Think

Within the organisation for which you currently work, or one for which you have been previously

employed, think of the methods that employees use to express their dissatisfaction with their job.

To be effective, formal grievance policies must be supported by both employers and employees.

They must resolve grievances within a specified time period, and all grievances must be taken

seriously. Matters must be dealt with in strict confidentiality and supervisors should be trained in

this.

Documented grievance procedures

Both Certified and Australian Workplace Agreements must contain a grievance procedure.

When preparing a grievance procedure, you must ensure that it is both procedurally and

substantively fair, in order to meet the legal requirements of both the state and federal Industrial

Relations Commissions.

Complaints provide a valuable opportunity to resolve potentially damaging conflicts and maintain

a productive workforce. Grievances should be handled sympathetically, seriously and sensitively.



A person doesn’t get a fair hearing when their complaint is dismissed as trivial, time wasting or

ridiculous.

Legal responsibilities

To be effective and to meet employers’ legal responsibilities a grievance procedure must:

• be written down, easily understood and communicated to staff, taking into account any

special requirements (eg put on audio cassette, video or placed on the company’s website)

• be user-friendly and trusted by all parties

• state the time limit that grievances will be handled within

• state that all grievances will be handled fairly, confidentially and free of unfair repercussions

• provide a range of entry points so that everyone feels comfortable coming forward

• identify the steps to be taken, who will take them, and to solve the grievance at the lowest

level possible.

Grievance resolution strategies

For a grievance to be resolved, it is essential that those responsible for resolving it have the power

and skills to do so. Following are some strategies to achieve this:

1. Allow all parties to the grievance access to support (eg legal representation, counseling,

interpreters, union representation).

2. Set out the types of solutions which should be reached, and ensure that grievance solutions

are consistent.

3. Consider only the relevant information, especially where the grievance could result in

disciplinary action.

4. Specify where the records will be kept and who will have access to these.

5. Provide an internal appeal system, and provide information on external sources of advice,

should the person be dissatisfied with the internal grievance procedure or resolution.

Grievance outcomes

An effective grievance procedure should allow the following outcomes:

• a peaceful method of conflict resolution to reduce industrial action and provide greater

stability

• quick and effective results

• improved communications and working relationships

• employee participation and consultation in the workplace



• increased productivity and efficiency of the organisation

• resolution of problems with workplace change programs

• better emotional wellbeing, performance and morale of employees

• avoidance of the costs and delays of going to the tribunal

• natural justice for employees.

Senior management support

It is important that the conflict management procedures developed and used within the

organisation have the full support of the senior management team. They must be seen to be

proactive in the area of ensuring that all grievances or conflicts are dealt with seriously by a

trained staff member.

The senior management team must lead the way by providing all of their staff, not just the

managers, with opportunities to access training and professional development in conflict

resolution procedures.

It is essential that the conflict management procedures are clearly communicated to all staff as

part of the overall procedure of implementation. The executive officer should, if possible, be the

person to communicate these new policies as part of the overall improvements made to the

organisation’s industrial relations policies and procedures.

It should be portrayed to all staff as a positive measure. They should also be made aware of how

they can access these policies both in their induction and through regular communications, such

as via written statements given to all staff with their pay slips, articles in a newsletter or through

the organisation’s website.

Union involvement

Often, when compiling the organisation’s conflict management procedures, the involvement of

the unions in either drafting the procedure or reviewing a working draft may ensure that they

support the conflict management process and help to ensure a future positive working

relationship.

Legal issues

The legal requirements of all procedures need to be examined by the company’s legal

representatives to ensure that they will stand up to close scrutiny, should an issue be taken to

either the AIRC or court.



Think - In you own workplace, how do employees receive information about such things as

conflict management or grievance procedures? How are you kept informed about changes and

developments in the organisation? Could the manner of communication within the organisation

be improved and if so, how?

Avoiding or reducing conflict in the workplace

Grievance procedures are a reactive way to manage conflict in the workplace. An organisation can take some proactive steps to try and minimise the likelihood of conflict occurring or worsening in the workplace.

a) Effective communication channels

A variety of approaches can be taken to improve communication channels. These include:

• regular formal staff meetings

• an ‘open door’ policy, where all employees are confident that they can approach senior

managers at any time

• providing information to all employees on the latest happenings within their workplace

(eg via a newsletter given out with pay slips, or a company website).

b) Effective relationships between employers and employees

Creating effective relationships between employers and employees is a complex area and may

require changing the corporate culture of an organisation.

The idea is to improve relationships so that:

• conflicts or grievances can be more easily discussed

• employees feel more comfortable approaching their supervisor or another supervisor

about issues of concern

• employers are more easily able to identify potential sources of conflict or grievance

• morale among workers increases.

Training and professional development for supervisors in effective conflict resolution techniques

Conflict resolution is an important skill in today’s industrial relations environment. The focus is

now to resolve issues within the workplace, with referral to outside agencies, such as the

Australian Industrial Relations Commission (AIRC), only taking place in extreme circumstances.

Think



Remember a time when there was potential for conflict in your workplace. What were the reasons

for this and how was it resolved? Was there anything you think could have been done differently?

3.3 Check documentation and other information sources to clarify issues in dispute.

It will often be necessary in a conflict situation to conduct an investigation into the matter.

An investigation could be carried out internally by a trained person or by an external

organisation. An external organisation may be used when the matter is quite serious and you

require an independent investigation to gather factual statements and evidence.

An investigation will aim to establish the facts and circumstances of the situation and usually lead

to a formal report being prepared.

An effective investigation procedure should be:

• Planned to ensure the investigation process is appropriate.

• Transparent – the investigation process and timeframes be outlined for all parties.

• Objective/impartial – the investigator should be unbiased and non-judgemental. In some

workplaces this may mean they need to be someone from outside the workplace.

• In line with the principles of natural justice, which are:

a. the person against whom the complaint is about is presumed to be innocent until

allegations are proved to be true

b. all allegations are investigated promptly

c. the person who the complaint has been received about is informed of all the

allegations and given an opportunity to explain his or her version of events

d. should the complaint be proven to be true, then remedial action must be taken.

• Documented – information from interviews and accurate records of evidence used to

establish facts should be kept. No assumptions or opinions should be included. Detailed

investigation notes are essential to demonstrate fair practices associated with the

investigation.

Example investigation process

• Review background documentation – policies, procedures, evidence already taken in

response to the complaint.

• Inform all parties of the process and timelines.



• Compile questions for interviews.

• Interview complainant

• Interview respondent

• Interview other parties to the complaint.

• Obtain any corroborating evidence.

• Assess evidence.

• Prepare investigation report.

• Inform parties of outcomes of investigation.

• Implement actions.

What makes a good investigator?

• Has received training in investigating harassment complaints.

• Has comprehensive understanding of what constitutes workplace harassment.

• Is impartial, non judgemental and has no conflict of interest or personal association with

any person involved in the complaint.

• Abides by principles of natural justice and procedural fairness.

• Parties have confidence in the appropriateness of the investigator.

• Is able to listen, interview and communicate effectively.

• Explains the investigation process to all involved parties.

• Keeps involved parties informed and is available to answer questions.

• Develops and follows an investigation plan and establishes realistic timeframes.

• Has either comprehensive knowledge of the organisation’s policy, procedures and training

provided to workers, or access to this information.

• Maintains accurate documentation throughout the investigation process.

• Is able to assess the information received and make a determination regarding the

allegations on the basis of the evidence collected.

3.4 Obtain expert or specialist advice and/or refer to precedents if required.

There are occasions when the organisation’s dispute resolution procedure fails to resolve the

grievance or conflict. In this situation, the next step is to refer the matter to the state or federal

Industrial Relations Commission. In this situation, the employee may refer, if they haven’t

already done so, to specialist assistance in the form of either legal or union representation.



Employers may also refer to outside specialists, including an external industrial relations expert,

an employment advocate available either privately or through employer associations, or services

such as conciliation available through the state and federal Industrial Relations Commission.

When the Commission makes a decision they will consider previous decisions that have been

made during the arbitration process as a comparison.

3.5 Determine negotiation outcomes, negotiation strategy and negotiation timeframes

Negotiation Skills (Pg 268 to 283 Understanding Australian Industrial Relations)

Managers, employees and human resource practitioners need to have strong negotiation skills to

carry out a range of activities including:

• Establishing conditions of employment.

• Resolving conflict or differing of opinions

• Developing enterprise agreements

In a negotiation each party is trying to satisfy their own needs and are trying to reach agreement

with another party in order to do so. It usually therefore involves give and take by each party.

The steps involved in Negotiation are:

1) Preparation

2) Persuasion

3) Compromising

4) Closing

Preparation

Each party needs to:

• identify the issues

• set targets

• gather data and information to support each claims

• review the other parties claims and preempt their arguments

• prepare and rehearse negotiation discussions

Persuasion



This step involves each party outlining their side and presenting evidence in support of their

arguments. The aim is to try and find common ground and a win win scenario. Steps should

include:

• Place all issues on the table at the beginning.

• Establish relationships.

• Ask questions.

• Avoid being aggressive and antagonistic.

• Take breaks to assess the other parties information where required.

Compromising

This stage is about trying to reach an agreement. Each side might try and accept some parts of

the other’s claims if that party will accept some of theirs.

Closing

If agreement is reached then this will be documented clearly for all parties. This will include

documenting each agreement and how it will be implemented. If agreement is not reached both

parties will need to concede that agreement is not possible and pursue other options available to

them e.g. approaching the AIRC under Fair Work Australia.

Good Faith Bargaining

When negotiating you should always operate under the principles of ‘good faith bargaining’.

This includes:

• allowing representation of each party

• being transparent and presenting all necessary information

• complying with agreed procedures

• genuinely considering the other parties arguments and information

• attending meetings.

Negotiating an Enterprise Agreement

The standard steps involved in negotiating an Enterprise Agreement are:

1. Receive employee ‘ambit’ log of claims.

2. Company reviews claims and determines their position.

3. Company identifies any employer claims to table during negotiation.

4. Establish negotiation committee.



5. Initial meeting to establish meeting framework, timeframes, ground rules.

6. Continual meetings to discuss each sides position and try and reach agreement.

In practice most organisations already have their agreements in place and are now into their third

and fourth versions. Therefore if negotiations are to be done then they may centre around a

relatively narrower area than the entire contents of an agreement.

Initiatives may be taken by either side -employer or employee representatives - to change or

amend the provisions. Preparations for this may start with the management team wanting to

negotiate changes, or the introduction of a long term objective from the earlier analyses. The IR

information sources monitored will help to establish parameters in the planning stage of what one

would like, what one could realistically aim for if the ideal position can't be achieved, and what

one will not accept.

3.6 Advocate the organisation’s position in negotiation to obtain agreement

Managers and Human Resources practitioners will often be required to explain an organisation’s position on a particular matter e.g. enterprise agreement, conflict situation, disciplinary matter to a number of different parties:

• Employees

• Union Delegates

• Consultative Committees

• Union Officials

• Industrial Relations Commissions

It is therefore imperative that the people required to do this have strong communication and negotiation skills and follow the principles outlined in 3.5.

3.7 Document and if necessary, certify the agreed outcomes with the relevant jurisdiction

In any conflict or negotiation situation it is essential that the appropriate records are kept. These records can then be used should the matter be unresolved and need to be taken to the next stage.

For example:

• Meeting notes

• Investigation notes

• Mediation Outcomes



• Negotiation Summary

• Enterprise Agreement clauses

Workplace Collective Agreements and AWAs need to be certified within the relevant jurisdiction e.g. Industrial Relations Commission and will be made a public document that is legally enforceable.

3.8 Implement agreements

Once an agreement has been made it is important to identify what needs to be done to make sure all components of that agreement are met. At this stage you would normally do an implementation plan (see 2.1) which will allocate tasks, responsibilities and timeframes.

It will be important to effectively communicate with the necessary parties and provide training.

3.9 Take remedial action where groups or individuals fail to abide by agreements

Employer options under the Act

In cases on industrial action, the Australian Workplace Relations Act 1996 provides employers

the following range of options:

• orders to stop or prevent industrial action

• penalties

• damages and injunctions.

Orders to stop or prevent industrial action

Employers can apply to the AIRC for an order to stop or prevent industrial action. The AIRC may

then make an order if there is actual or threatened industrial action in the following categories:

• an industrial dispute

• the negotiation or proposed negotiation of a Certified Agreement

• any work regulated by a federal award or Certified Agreement.

Penalties

The Australian Workplace Relations Act 1996 does not allow industrial action to occur during the

life of an agreement. If an industrial dispute occurs during this time, employers are able to seek

either a penalty (up to $10,000 for a body corporate or $2,000 in any other case) or an injunction

to stop the action.



Damages and injunctions

Employers are able to take legal action in a state/territory Supreme Court for damages or an

injunction for a breach of common law, for example, for unlawful interference with their trade or

business.

Before taking action in the Supreme Court, employers are required to apply to the AIRC for a

certificate. The Commission must then immediately try to stop the industrial action. However, if

the industrial action is continuing 72 hours after the AIRC has been notified, they will then issue

employers with a certificate, which is then used in court.

Paying workers during industrial action

The Australian Workplace Relations Act 1996 states that it is illegal to pay employees during

periods of industrial action.

It is also illegal for employees to accept payment during periods of industrial action, make claims

(either personally or through their union) for pay during this time, or threaten further industrial

action to obtain their pay.

Dismissing striking workers

It is illegal for employers to dismiss or threaten to dismiss employees for undertaking protected

industrial action. In this instance it means that industrial action is allowed under certain

conditions, for example, during the negotiating period of an agreement.

Should an employer dismiss an employee(s) for undertaking unprotected industrial action, for

example, during the life of an agreement, the normal requirements must be met: the dismissal

must not be unfair, that is, harsh, unjust, unreasonable or unlawful (ie dismissal for not signing an

AWA).

In your own workplace or one with which you are familiar, how are grievances and conflicts

managed? Is there a combination of formal procedures and properly trained personnel? What

other methods, if any, are used to assist in this area?

Disciplinary Action against Individuals

Where an individual has failed to abide by an agreed policy, procedure or agreement the

Company may choose to take disciplinary action against them. This could include:

• Informal warning

• Formal Written Warning



• Termination



Transition to Forward with Fairness Bill 2008

Following the release of the Workplace Relations Amendments (Transition to Forward with

Fairness) Bill 2008, on 14 February 2008 the Government released the Discussion Paper –

National Employment Standards Exposure Draft. The Exposure Draft includes the 10 National

Employment Standards (the NES) which, together with the modernisation of Awards, will form

an enforceable safety net to protect fair minimum wages and conditions for working Australians.

The NES represent the key minimum entitlements for all employees which will be guaranteed in

legislation. In summary, the proposed NES are:

1. Maximum weekly hours

The maximum weekly hours are 38 hours for full-time employees, subject to reasonable

additional working hours. Unlike the Howard Government’s Australian Fair Pay and Conditions

Standard, the NES does not provide for the averaging of hours but the proposed NES expressly

permit modern Awards to deal with averaging of hours arrangements.

2. Requests for flexible working arrangements

An employee with a child under school age or with responsibility for the care of a child under

school age may make a request in writing to the employer for flexible working arrangements and

the employer must respond in writing to the request within 21 days. An employer may only

refuse the request on ‘reasonable business grounds’.

3. Parental leave and related entitlements

The proposed NES provides that each parent (who is an eligible employee) may be absent from

work for separate periods of up to 12 months of unpaid parental leave in association with either

the birth of a child to an employee or their spouse or the adoption of a child below school age. An

employee who takes 12 months’ parental leave may also request additional leave of up to 12

months and the employer may only refuse on reasonable business grounds.

4. Annual leave

An employee (other than a casual employee) is entitled to 4 weeks of paid annual leave and a

shift worker will be entitled to an additional week of paid annual leave.



5. Personal/carer’s leave and compassionate leave

An employee (other than a casual employee) is entitled to:

i. 10 days of paid personal/carer’s leave for each year of service;

ii. 2 days of paid compassionate leave per occasion;

iii. 2 days of unpaid carer’s leave per occasion (if paid carer’s leave is exhausted).

A casual employee is entitled to:

i. 2 days of unpaid compassionate leave per occasion; and

ii. 2 days of unpaid carer’s leave per occasion.

6. Community service leave

An employee is entitled to be absent from work to engage in prescribed community service

activities such as jury service and emergency service duties. In relation to jury service leave, an

employee (other than a casual employee) is entitled to ‘make-up pay’ which is the difference

between what the employee receives in respect of jury service (not including any expense related

allowances) and the employee’s base rate of pay for their ordinary hours of work for the time that

the employee is absent on jury leave.

7. Long service leave

Until a uniform long service leave NES is developed, long service leave entitlements in pre-

modernised awards, NAPSAs or state or territory laws will be preserved to ensure they cannot be

bargained away.

8. Public holidays

An employee is entitled to be absent from work on public holidays and is also entitled to be paid

for his or her ordinary hours that would have normally been worked at their base rate of pay. An

employer is permitted to reasonably request an employee to work on a public holiday. An

employee may refuse the request if it is not reasonable or if the employee’s refusal is reasonable.



9. Notice of termination and redundancy pay

An employer must provide the following minimum periods of notice (or make a payment in lieu

of notice) to an employee on termination of employment:

Employee's period of continuous service with the

employer

at the end of the day that notice is given

Perio

d

Not more than 1 year 1

week

More than 1 year but not more than 3 years 2

weeks

More than 3 years but not more thatn 5 years 3

weeks

More than 5 years 4

weeks

The proposed redundancy pay NES provides that an employee is entitled to redundancy pay if the

employee’s employment is terminated at the initiative of the employer because the employer no

longer requires their job to be done by anyone because of the insolvency or bankruptcy of the

employer. However there is no entitlement to redundancy if the employee is employed by a

business with fewer than 15 employees. The calculation of redundancy pay is based on an

employee’s period of continuous service in accordance with the following:



Employee's period of continuous service with the

employer

at the end of the day that notice is given

Period

At least 1 year but less than 2 years 4

weeks

At least 2 years but less than 3 years 6

weeks


weeks


weeks


weeks


weeks


weeks


weeks


weeks

At least 10 years 12

weeks

10. Fair Work Information Statement

An employer will be required to give each new employee the Fair Work Information Statement

which will contain information regarding the NES, modern Awards, agreement making, the right

to freedom of association and the role of Fair Work Australia.



Unfair Dismissal

An unfair dismissal is unfair when it is ‘harsh, unreasonable or unjust’.

WORKPLACE RELATIONS ACT 1996 - SECT 652

Arbitration

(1) If: (a) the Commission has issued a certificate under subsection 650(2) regarding conciliation of an application relating to a termination of employment; and (b) the applicant has made an election under subsection 651(1), (2), (3) or (5) to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable; the Commission may so proceed to arbitrate the matter. (2) Neither the making of an election under subsection 651(1), (2), (3) or (5) to proceed to arbitration nor the commencement of that arbitration prevents further conciliation of the matter being attempted, or the parties from settling the matter, at any time before an order is made under section 654. (3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to: (a) whether there was a valid reason for the termination related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees); and (b) whether the employee was notified of that reason; and (c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and (d) if the termination related to unsatisfactory performance by the employee—whether the employee had been warned about that unsatisfactory performance before the termination; and (e) the degree to which the size of the employer’s undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and (f) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and (g) any other matters that the Commission considers relevant.


Exercise of arbitration powers by member who has exercised conciliation powers

(1) If a member of the Commission has exercised conciliation powers in relation to an application under this Division, the member must not exercise, or take part in the exercise of, arbitration powers in relation to the application if a party to the arbitration proceeding objects. (2) The member is not taken to have exercised conciliation powers in relation to the application merely because: (a) the member arranged for a conference of the parties or their representatives to be presided over by the member, but the conference did not take place or was not presided over by the member; or (b) the member arranged for the parties or their representatives to confer among themselves at a conference at which the member was not present.




Remedies on arbitration

(1) Subject to this section, the Commission may, on completion of the arbitration, make an order that provides for a remedy of a kind referred to in subsection (3), (4) or (7) if it has determined that the termination was harsh, unjust or unreasonable. (2) The Commission must not make an order under subsection (1) unless the Commission is satisfied, having regard to all the circumstances of the case including: (a) the effect of the order on the viability of the employer’s undertaking, establishment or service; and (b) the length of the employee’s service with the employer; and (c) the remuneration that the employee would have received, or would have been likely to receive, if the employee’s employment had not been terminated; and (d) the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and (e) any other matter that the Commission considers relevant;

WORKPLACE RELATIONS ACT 1996 - SECT 698 Alternative dispute resolution process An alternative dispute resolution process is a procedure for the resolution of disputes, and includes: (a) conferencing; and (b) mediation; and (c) assisted negotiation; and (d) neutral evaluation; and (e) case appraisal; and (f) conciliation; and (g) arbitration, or other determination of the rights and obligations of the parties in dispute; and (h) a procedure or service specified in the regulations.

Legislation - Federal

• Racial Discrimination Act 1975

• Sex Discrimination Act 1984

• Disability Discrimination Act 1992

• Human Rights and Equal Opportunity Commission Act 1996

State - NSW

• New South Wales Anti-Discrimination Act 1977

• New South Wales Industrial Relations Act 1996

Note - The federal legislation takes precedence over state legislation to the extent of any

contradiction

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