Department of Health and Ageing Enterprise Agreement 2011-2014

Part K – Consultation and Dispute Resolution

Page last updated: 31 October 2011

82. Staff/workplace participation

Staff member representation

82.1 Staff have the right to be represented by their Union in the workplace.

82.2 The parties acknowledge that a relationship at work includes ongoing interaction and discussions between the Staff member and their Manager. Where either the Staff member or their Manager feel there are significant issues of concern about the Staff member’s employment the Staff member can elect to have:
  1. a support person to provide personal support to the Staff member and will not act as the Staff member’s advocate; and/or
  2. a representative who may advocate on behalf of the Staff member.

National Staff Participation Forum (NSPF)

82.3 The Secretary will continue to support Staff’ participation fora at the national and unit level. The National Staff Participation Forum (NSPF) is the peak Staff’ consultation body within the department. The terms of reference of the NSPF will be agreed in consultation with Staff and their representatives. Further information on the NSPF including membership is available in the NSPF Terms of Reference.

82.4 The Secretary will consult with the NSPF and affected Staff at the earliest possible time on issues relating to the implementation and operation of this Agreement and issues affecting the employment conditions of Staff, including major change.

82.5 The Secretary will provide relevant information to the Staff or their representatives in a timely manner.

Broader consultation

82.6 The Secretary will continue to engage in broader consultation with Staff and/or their representatives as and when required.

Consultation on major change

82.7 Where a definite decision is made to introduce major changes in program, organisation, structure or technology that are likely to have significant effects on Staff, the Secretary will notify the Staff who are likely to be affected by the proposed changes and their representatives, if any.

82.8 Significant effects include:

  1. terminations of employment;
  2. major changes in the composition, operation or size of the department’s workforce or in the skills required;
  3. the elimination or diminution of job opportunities, promotion opportunities or job tenure;
  4. significant alteration in hours of work;
  5. the need to retrain employees;
  6. the need to relocate employees to another workplace;
  7. the major restructuring of jobs.
82.9 The Secretary must discuss with the Staff affected and their representatives the introduction of the changes referred to in clause 82.8, the effects the changes are likely to have on Staff and measures to avert or mitigate the adverse effects of such changes on Staff and must give prompt consideration to matters raised by the Staff and/or representatives in relation to the changes.

82.10 The discussions must commence as early as practicable after a definite decision has been made to make the changes referred to in clause 82.8.

82.11 For the purposes of such discussion, the Staff concerned and their representatives, if any, are to be provided in writing relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on Staff and any other matters likely to affect Staff. The Secretary is not required to disclose confidential or commercially sensitive information to the Staff.

Workplace delegates

82.12 The department recognises, respects and will facilitate the roles undertaken by union workplace delegates and other elected union representatives at the workplace level.

82.13 Further information about facilities available for union workplace delegates and other elected union representatives is set in Attachment C of the Agreement and should be read in conjunction with the department’s Union Negotiation, Communication and Access to Workplace Protocols.

83. Fair treatment and review of actions

83.1 Staff may access both informal and formal processes to resolve a matter in the workplace. These processes complement the dispute resolution procedures in this agreement and review of action provisions in the PS Act.

83.2 Further information is available in the Fair Treatment and Review of Actions Policy.
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84. Dispute Resolution Procedures (DRP)

Application of DRP

84.1 The DRP will apply to disputes under the Agreement, the NES or disputes in relation to OH&S matters.

Resolution at the workplace level

84.2 Wherever it is possible, disputes will be promptly resolved at the workplace level. Where this is not possible, the dispute may be referred to more senior levels of management, for attempt at resolution with the Staff member, and their representatives. A Staff member’s choice of representation will be respected by the department.

Work to continue

84.3 Work will continue as normal while the DRP are applied and a Staff member must comply with a direction given by the Secretary to perform other available work at the same workplace, or at another workplace, unless:

  1. the work is not safe; or
  2. applicable occupational health and safety legislation would not permit the work to be performed; or
  3. the work is not within the capacity or skills sets of the Staff member to perform.

Representation during dispute

84.4 Throughout the DRP outlined in this section, a Staff member or group of Staff may be represented by a person or persons of their choice in relation to that dispute. A Staff member’s or group of Staff’ choice to be represented will be respected by the department.

Referral to mediation

84.5 The parties to the dispute may agree to refer a matter in dispute to an independent mediator. A Staff member or group of Staff cannot be compelled to agree to mediation and may refer any matter in dispute to Fair Work Australia (FWA).

84.6 Reasonable costs incurred for mediation services will be borne by the department.

Referral to Fair Work Australia

84.7 If a dispute in relation to a matter arising under the Agreement is unable to be resolved and all agreed steps for resolving it have been taken, the dispute may be referred by either party to FWA, or such other party as may be agreed by the parties for resolution by conciliation in the first instance and, where the matter in dispute remains unresolved, arbitration.

84.8 If arbitration is necessary FWA may exercise the procedural powers in relation to hearings, witnesses, evidence and submissions which in the opinion of FWA are necessary to make the arbitration effective.

84.9 FWA may deal with the dispute in two stages:

  1. FWA will attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
  2. if FWA is unable to resolve the dispute at the first stage, FWA may then:

  3. i. arbitrate the dispute; and
    ii. make a determination that is binding on the parties.
84.10 FWA may dismiss or refrain from further hearing a matter or part of a matter which in the view of FWA is vexatious, or where either or both parties to the dispute have not made genuine attempts to resolve the matter at the workplace level through appropriate notifications, identification of issues and reasonable discussions.

84.11 Any decision or direction FWA makes in relation to the dispute, including procedural directions, shall be accepted by all affected persons, and as a result of arbitration shall be accepted by the parties as settlement of the dispute and will be complied with, subject to either party exercising a right of appeal against the decision to a Full Bench.
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