Moving through dispute resolution and the importance of adhering to council processes

By: Paul Spoto, Associate, Legal and Workforce

Councils are occasionally advised by an employee or Unions (“the notifier”) that “we are in dispute” over matters when and, in reality, little or no information has been supplied as to what exactly the dispute is about. 

What should Councils do when advised of a dispute? 

It is important that Councils adhere to their dispute resolution procedures when dealing with disputes/grievances which operate in conjunction with Chapter 6 – Industrial Disputes provisions in the Industrial Relations Act 2016 (Qld) (IR Act).   

It is reasonable to expect that the notifier of a dispute provides sufficient details of the dispute, such as what is in dispute as well as any references to the Certified Agreement, Award, legislation or policy the notifier is relying on as the basis of the dispute.  Councill should request such information if it is not initially provided. 

If served with a Form 10 - Notice of industrial dispute, Council should act quickly to prepare to attend a conciliation conference before the Queensland Industrial Relations Commission (QIRC) or for other direction or order the QIRC may make. 

Status Quo to remain? 

There is no legislative requirement that the status quo existing before receipt of a notice of a dispute continue while the dispute process is followed.  A Council's certified agreement (CA) may, however, contain a ‘maintaining status quo’ provision and in which case the CA must be adhered to - except in circumstances where the matter in dispute raises a genuine safety issue.   

In circumstances where Council’s CA is silent on maintaining the status quo, in some cases where Council is provided notice of a dispute it may be good business practice to maintain the status quo in any event to avoid argument that Council may have breached the general provisions of IR Act i.e. taking adverse action against employee because the employee has or seeks to exercise a workplace right to give notice of an industrial dispute.  

Harrison DP in the matter of Australasian Meat Industry Employees’ Union, Newcastle and Northern Branch v Sunnybrand Chickens and another [2003] NSWIRComm 361 (and relied upon in the Fair Work Australia decision AMWU v Silcar Pty Ltd [2011] FWA 1083) relevantly stated on the question of status quo:  

• Status quo is invoked to allow resolution of the substantive dispute to happen without prejudice or with minimum prejudice to either party; and  
• The insistence on the status quo cannot be used as an open-ended mechanism for delay or obstruction of lawful and legitimate management initiative. 

What will the QIRC do 

The QIRC may take the steps it considers appropriate for the prevention or prompt settlement of the dispute by: 

1. conciliation in the first instance;  
2. if the commission considers conciliation has failed and the parties are unlikely to resolve the dispute – arbitration; 

The QIRC may do 1 or more of the following- 

1. direct any industrial action in relation to the dispute to stop or not happen; 
2. make orders, or give directions, of an interlocutory nature; 
3. exercise powers to grant an interim injunction; 

• made another order or exercise another power the commission considers appropriate for the prevention of, or the prompt settlement of, the dispute. 

When can the QIRC intervene 

An industrial dispute is a dispute regarding an industrial matter between an employer and: 

• an employee; or 
• a group of employees; or  
• an industrial organisation (union) on behalf of an employee/employees. 

A key preliminary question, therefore, that must be addressed by the Commission is whether the dispute relates to an ‘industrial matter’ as defined under s.9 of the IR Act.  That definition is rather broad and has wide application to employment related matters, affecting or relating to:   

• work done, or to be done; 
• the privileges, rights or functions of employers and employees; or 
• a matter the Court or Commission considers a contributing cause of an industrial action or industrial dispute. 

The definition of an ‘industrial matter’ also extends to matters mentioned in Schedule 1 of the IR Act which includes: 

• wages, allowances and remuneration; 
• entitlements under the Queensland Employment Standards and industrial instrument (i.e. an award or certified agreement);  
• matters relating to the relationship between Councils and unions.  

Importantly, the power of the QIRC to hear an industrial dispute does not extend to Councils exercising managerial prerogative.  This issue was previously dealt with in a previous article, Managerial prerogative – When the Commission won’t intervene in Council’s decision. 

Should Council receive a dispute notice it is best to seek advice before attending conciliation.

Please contact the Peak legal team on 07 3000 2148 or at peaklegal@wearepeak.com.au to discuss the next steps.