Employment Dispute Resolution Act 2008

The Act is structured around a small set of legal constructs that govern the mechanics and legal effect of consensual and contractual dispute resolution in the employment field.

Employment dispute. The Act defines “employment dispute” broadly, as any question, dispute or difficulty arising out of or in the course of employment, and expressly includes potential disputes for mediation purposes (s 3(1), s 4). It preserves disputes that survive the termination of an employment relationship, for example dismissal claims or claims about post-termination benefit denial (s 3(2)).

Mediation (Division 1). Mediation is a voluntary conciliation process conducted by the IR Commission where the parties consent (s 6). The Commission may assist and make recommendations, but it cannot compel parties, arbitrate, or make binding determinations in mediation (s 10(2)-(4)). If parties reach agreement, the Commission may register it as a “mediation settlement agreement”, which is then binding and enforceable under the IR Act as if it were an industrial agreement (s 11(1)-(2)). However mediation settlements cannot vary existing awards, orders or industrial agreements under the IR Act (s 11(3)), and parties who enter such settlements are generally prevented from bringing other claims under written law in respect of the settled aspects (s 11(4)).

Referral agreements (Division 2). Parties may enter a “referral agreement” delegating to the IR Commission specified dispute-resolution functions (s 12). The referral agreement can authorise mediation, conciliation, arbitration, provision of remedies available under the IR Act, and determination of other issues between the parties (s 12(4)-(5)). The Act permits the Commission to perform those functions and to exercise certain powers from the IR Act unless specifically excluded (s 15(1)(c), s 15(2)). The IR Commission may make orders or memoranda recording agreements (s 18); may determine the scope or meaning of referral agreements (s 16); and decisions will bind only if the referral agreement provides them to be binding (s 19). Parties to referral agreements cannot unilaterally withdraw from the agreement without written consent of the other parties (s 12(8)), and referral agreements default to a maximum three-year duration unless otherwise specified (s 12(6)).

Constitutional arrangements and forms. The Chief Commissioner controls the constitution of the IR Commission under the Act. Mediation may be performed by as many commissioners as the Chief Commissioner assigns (s 5), while referral and Commonwealth enterprise agreement matters are to be constituted by a single commissioner unless otherwise required or permitted (ss 14(1), 28(1)). The Chief Commissioner also approves the form for requests and appointments (ss 7(2), 8(2), 13(2)) and may make regulations addressing practice and procedures under the Act (s 31).

Confidentiality and privacy. The Act places communications made in mediation or referral proceedings into a statutory confidentiality and inadmissibility regime (s 24). It limits admissibility with narrow exceptions, including where parties consent or where the admissibility is necessary to resolve a dispute about whether a settlement exists (s 24(4)). Mediation and referral proceedings must be held in private, and the Commission may issue non-publication orders which may be enforced under the IR Act (s 25).

Interaction with Commonwealth law. If parties are bound by a Commonwealth enterprise agreement that authorises the IR Commission to conduct dispute resolution, the Commission may act under the terms of that agreement and under the Fair Work Act 2009, with the Fair Work Act s 740 applying to the process (ss 27-29).

Enforcement and appeals. The Act does not itself create standalone penalty provisions. Instead it channels enforcement and compliance into the IR Act and regulations made under s 31, for example enabling enforcement of binding referral decisions or privacy directions under the IR Act enforcement provisions (s 20; s 25(3); s 31(2)(b)(ii)). Appeals from decisions made under a referral are excluded unless the referral agreement expressly provides for an appeal, in which case IR Act s 49 applies (s 22). For Commonwealth enterprise agreement dispute processes, the Fair Work Act s 740 applies (s 29(2)).

Employers and employees. The Act expressly targets employers and employees as defined in the IR Act (s 3(1) definitions cross-referencing the IR Act s 7), and covers employment disputes that arise in the course of employment, including after the employment relationship ends (s 3(2)). That includes dismissed employees making claims about termination, or employees alleging denial of contractual benefits.

Groups and representatives. Groups of employees or employers may request mediation and may appoint a representative to act on the group’s behalf, but group appointments must be made in a form approved by the Chief Commissioner (ss 7(1), 8(1)-(2)). Bodies corporate that are parties to a referral proceeding may be represented by officers such as directors or secretaries, while other representation arrangements may be specified in referral agreements (s 17).

Registered organisations. The Act expressly contemplates participation by organisations registered under the IR Act Part II Division 4 or organisations registered under the Fair Work (Registered Organisations) Act 2009 (Commonwealth) (s 3(1) definition of “organisation”). Such organisations may be parties to mediation requests or referral agreements (s 7(1)(e), s 12(2)(c)-(d)).

IR Commission and commissioners. The Act affects the institutional practice and workload of the Western Australian Industrial Relations Commission (IR Commission), its Chief Commissioner and commissioners. The Chief Commissioner has specific administrative control over forms, constitution and assignment of commissioners for matters under the Act (ss 5, 7(2), 8(2), 13(2), 14(3), 28(3), 31). The Act expands the Commission’s functions beyond those in the IR Act (s 30(1)), which can affect resourcing and allocation decisions.

Parties to referral agreements. Parties who enter referral agreements are contractually bound by the terms they negotiate, subject to statutory constraints such as the default three-year term and prohibition on unilateral withdrawal without written consent (s 12(6)-(8)). Parties who want binding outcomes must draft the referral agreement to make decisions of the Commission binding and to provide any appeal rights they want (ss 19, 22).

Third parties and courts. The Act affects courts and tribunals indirectly through admissibility and confidentiality rules. Evidence and documents generated for mediation or referral proceedings are statutorily protected from admissibility in other proceedings, subject to exceptions (s 24). Courts or tribunals will therefore encounter limits on evidence sourced from these processes unless exceptions apply.

Regulators and agencies. Where a Commonwealth enterprise agreement is involved, the Act brings the Fair Work Act into play, so federal regulators and the federal dispute resolution regime interact with the state Commission’s work in those cases (ss 27-29). The Act also contemplates the application of regulations made under the IR Act to the enforcement of directions and decisions under this Act (s 31(2)(b)(ii)).

Who bears costs and obligations. Parties bear the responsibility to initiate requests in approved forms, to obtain required consents for mediation, to prepare and present matters to the IR Commission, and to negotiate referral agreements where sought (ss 6(2), 7(2), 12, 13(2)). The Chief Commissioner and the IR Commission make procedural and disposition decisions that affect outcomes and costs, including whether to decline or suspend mediation or referral proceedings (ss 9, 21). The Act does not contain express fee or cost shifting provisions, so costs of representation and preparation fall on the parties unless otherwise agreed.

Parties’ rights to seek dispute resolution. The Act gives employees, employers, groups of employees or employers, and organisations the express right to request mediation by the IR Commission (s 7(1)). Parties to a referral agreement or members of a group party may refer an employment dispute to the Commission for the performance of functions specified in the referral agreement (s 13(1)).

Consent and formality requirements. The Commission must not act as mediator unless satisfied that each party involved has consented (s 6(2)). Requests for mediation, appointments of group representatives, and referrals must be made in forms approved by the Chief Commissioner (ss 7(2), 8(2), 13(2)). Parties therefore have the duty to comply with form and procedure prescribed by the Chief Commissioner to access services under the Act.

Representation rights. Parties to a referral proceeding may appear in person, and bodies corporate may be represented by appropriate officers (s 17(a)-(b)). Referral agreements can specify other representation arrangements, and where the referral agreement is silent the parties can agree (s 17(c)). Groups may appoint representatives for mediation provided the appointment complies with the Chief Commissioner’s approved form (s 8).

Commission’s duties and limitations. The IR Commission has an express duty to have regard to requests made by parties and to endeavour to comply with practicable requests consistent with resolving disputes expeditiously, conveniently and informally (s 10(3)(a)-(b); s 15(3)(a)-(b)). However the Commission is limited in mediation: it may not compel, arbitrate or otherwise determine parties’ rights or obligations or make a decision in relation to the employment dispute under the mediation regime (s 10(2)(a)-(d)).

Powers under referral agreements. Where a referral is made under a referral agreement the Commission may perform the functions specified by the parties and, unless excluded, exercise certain powers in the IR Act listed in s 15(1)(c). The Commission may also allow amendments to the referral or agreement by consent of the parties (s 15(1)(b)). The Commission can determine scope and meaning of referral agreements and those determinations are binding on the parties (s 16).

Settlement and enforceability. If parties reach agreement in mediation, with consent the Commission may register the agreement as a mediation settlement agreement, which is binding and enforceable under the IR Act as if it were an industrial agreement (s 11(1)-(2)). Mediation settlements cannot vary existing awards, orders or industrial agreements under the IR Act (s 11(3)). Under referral proceedings the Commission may make an order in the terms of an agreement reached and such an order may vary the operation of existing awards, orders or industrial agreements under the IR Act with respect to the parties to the order (s 18(1)-(2)).

Confidentiality duties. Parties have a statutory duty of confidence with respect to statements, communications and documents used in mediation or referral proceedings. Such materials are generally inadmissible in other proceedings unless a statutory exception applies, including where the parties consent to admission or where the evidence is necessary to resolve a dispute about whether a binding settlement was made (s 24(1)-(4)). The IR Commission must hold mediations and referral proceedings in private and may restrict publication or disclosure of evidence or materials (s 25(1)-(2)).

Withdrawal and duration constraints. Under referral agreements parties are constrained by withdrawal rules. A party cannot withdraw from a referral agreement without written agreement of the other parties (s 12(8)). Referral agreements come into force on their specified commencement date, or the date made, and remain in force until an agreed expiry date or, if none specified, the third anniversary of commencement (s 12(6)). However a party who has made a referral can withdraw the referral at any time (s 13(3)).

Chief Commissioner’s powers and parties’ obligations. The Chief Commissioner has the power to approve forms and procedures, to assign commissioners and to make regulations under the IR Act to implement the Act (ss 5, 7(2), 8(2), 13(2), 31). Parties therefore have an ongoing obligation to comply with administrative requirements, and risk denial of access to the Act’s dispute-resolution processes if forms or procedures are not followed.

Appeals and finality. Appeals from decisions of the Commission under a referral are available only where the referral agreement provides for appeal rights. If it does, IR Act s 49 applies as if the decision were a decision under the IR Act (s 22). For mediation settlement agreements and registered referral orders, enforcement remedies parallel the IR Act’s mechanisms (ss 11(2), 20), subject to the specific terms of referral agreements.

The Act contains no stand-alone sanction regime or express criminal offences. Enforcement and compliance are effected primarily by cross-reference to the IR Act and by the contractual effect of referral agreements and registered settlement instruments.

Enforcement routes provided in the Act. The principal enforcement mechanisms are these. A mediation settlement agreement, once registered by the IR Commission with the parties’ consent, is binding on the parties and may be enforced under the IR Act as if it were an industrial agreement (s 11(2)). A decision or direction of the IR Commission given under Division 2 that binds the parties may be enforced under the IR Act s 84A as if it were a decision or direction under IR Act s 32, subject to regulations (s 20). Privacy directions and orders given under s 25 may likewise be enforced under IR Act s 84A, subject to regulations (s 25(3); s 31(2)(b)(ii)).

Practical effect of these cross-references. The Act therefore imports enforcement procedures and penalties that exist in the IR Act, but it does not itself reproduce those provisions. The Act signals that binding outcomes produced under referral agreements or recorded as registered mediation settlements have the same enforceability profile as industrial agreements and Commission decisions under the IR Act (ss 11(2), 20). The exact enforcement remedy available, and whether penalties attach, will depend on the applicable IR Act provisions and any regulations made under s 31 that apply those provisions with modifications (s 31(2)(b)).

Limits on enforcement and finality. The Act restricts the binding effect of certain Commission actions. A decision, direction or determination of the IR Commission under a referral does not bind the parties unless the referral agreement provides for binding effect (s 19). That means parties who want a binding, enforceable outcome must ensure the referral agreement expressly provides for binding decisions or seek registration of an agreement or order under s 18.

Appeals and scope for review. The Act limits appeals from referral decisions to those referral agreements that expressly permit appeal, and where appeal is permitted, IR Act s 49 applies (s 22). The Act does not itself create an internal appeals architecture for mediation outcomes because mediation ordinarily cannot produce enforceable decisions by the Commission (s 10(2)). Any judicial review rights or other external remedies are not created by this Act and would turn on general administrative law or the provisions of the IR Act, where engaged.

Enforcement costs and uncertainty. Because the Act depends on the IR Act and regulations for enforcement detail (s 31), parties face some implementation uncertainty until they consult the IR Act provisions and any regulations that apply by prescription. The Act gives the Chief Commissioner power to prescribe practice and procedure and to apply IR Act provisions with modifications (s 31(1)-(2)). Parties and advisers must therefore check current IR Act procedures and any regulations when considering enforcement or compliance costs.

No express fines in the Act. The Act does not itself specify fines, pecuniary penalties, or imprisonment attached to breaches of the Act’s provisions. Instead, the enforcement architecture is procedural and relies on the binding force of registered instruments and the IR Act’s enforcement mechanisms (ss 11(2), 20, 31).

The Employment Dispute Resolution Act 2008 is framed to operate alongside the Industrial Relations Act 1979 and, where Commonwealth instruments are involved, the Fair Work Act 2009. The Act repeatedly cross-references those statutes and contemplates regulatory instruments made under the IR Act to adapt IR Act provisions to the operation of this Act.

Embedded references to the IR Act. Definitions and institutional arrangements rely on the IR Act. The Act defines “Chief Commissioner”, “commissioner”, “employee”, “employer”, “industrial matter” and “IR Commission” by reference to the IR Act (s 3(1)). It preserves that the functions conferred under this Act are in addition to, and do not derogate from, functions the IR Commission holds under the IR Act or any other written law (s 30(1)). The Act also applies IR Act ss 3, 16, 16A and 17 to this Act as if references to “this Act” included the Employment Dispute Resolution Act (s 30(2)). This means that matters such as the Commission’s general powers and administrative provisions in those specific IR Act sections are imported into the way this Act operates.

Enforcement via IR Act mechanisms. The Act depends on the enforcement machinery of the IR Act for binding outcomes and for the enforcement of privacy directions. It provides that a binding decision or direction under Division 2 may be enforced under IR Act s 84A as if it were a decision under IR Act s 32, subject to regulations (s 20). Privacy directions given under s 25 may similarly be enforced under IR Act s 84A (s 25(3)). Those cross-references mean parties must consult the IR Act to know the specific enforcement remedies and sanctions applicable.

Interaction with the Fair Work Act and Commonwealth enterprise agreements. Division 4 enables the IR Commission to operate under Commonwealth enterprise agreements where those agreements authorise the Commission to conduct dispute resolution procedures, and it expressly applies the Fair Work Act provisions relevant to dispute settlement processes (ss 27-29). Section 29(2) incorporates Fair Work Act s 740 into dispute resolution processes conducted under this Division. Where a Commonwealth enterprise agreement is in play, federal law therefore governs aspects of the dispute-resolution process in conjunction with this Act. The Act also recognises organisations registered under the Fair Work (Registered Organisations) Act 2009 as potential parties (s 3(1) definition).

Preclusion where other proceedings exist. The Act gives the IR Commission power to refuse or suspend mediation or referral if proceedings have been commenced under another law of the State or the Commonwealth that relate to the same subject matter (ss 9(b), 21(b)). That creates an interactional gate where existing state or federal litigation or statutory processes can preclude use of the Act’s dispute-resolution pathways.

Privileged and confidential materials across fora. The Act makes communications and documents created for mediation or referral proceedings inadmissible in other courts, tribunals or bodies, subject to exceptions (s 24). That creates a statutory interaction with evidence rules in other proceedings, limiting the transferability of information produced in these processes to external litigation unless express exceptions apply.

Regulatory adaptability. Section 31 permits the Chief Commissioner to make regulations under the IR Act prescribing matters required by the Act and allows regulations to provide for the application of IR Act provisions (with modifications) to the performance of functions and enforcement under this Act (s 31(1)-(2)). This provides a statutory mechanism for the IR Act and its regulations to be adapted to the practical operation of the Employment Dispute Resolution Act.

Preservation of industrial instruments. The Act limits the ability for mediation settlements to alter existing awards, orders or industrial agreements under the IR Act (s 11(3)), but permits referral-based orders to vary such instruments with respect to the parties to the order (s 18(2)). That creates a specific interactional rule: mediator-registered settlements cannot vary awards, but referral-derived orders can, in the Commission’s opinion, do so for the affected parties.

Consequences for cross-jurisdictional disputes. Because the Act contemplates interplay with federal enterprise agreements and Commonwealth laws, parties involved in disputes that span federal and state regimes must consider both the Act and the Fair Work Act and the respective dispute-resolution clauses in enterprise agreements. The Act directs parties to rely on forms and procedural rules approved by the Chief Commissioner and to consult the IR Act and any relevant regulations when determining enforcement or procedural questions (ss 7(2), 13(2), 31).

The text includes a compilation table and notes that record the Act’s legislative history as incorporated in the provided document. The original Employment Dispute Resolution Act 2008 (No. 18 of 2008) received assent on 19 May 2008. Sections 1 and 2 commenced on 19 May 2008 and the remainder of the Act commenced by proclamation on 1 December 2008 (see the compilation table and s 2).

Subsequent amendment recorded in the compilation table is the Industrial Legislation Amendment Act 2011 (No. 53 of 2011), Part 5. That amending Act received assent on 11 November 2011 and those amendments commenced on 1 April 2012, as noted in the compilation table and the Act’s notes. The Act text itself shows particular amendments effected by No. 53 of 2011, as cross-referenced in a number of places:

• Section 3 was amended, indicated by the marginal note “[Section 3 amended: No. 53 of 2011 s. 52.]”. The content retained in s 3 includes the definition of “Commonwealth enterprise agreement” referencing the Fair Work Act 2009 or other arrangements prescribed under IR Act s 113 for that definition.

• Division 4 contains an inserted provision. Section 26 was deleted (the marginal note shows “[26. Deleted: No. 53 of 2011 s. 53.]”). Section 27 was inserted by No. 53 of 2011 s 54, permitting a party to apply for the IR Commission to conduct a dispute resolution process where the parties are bound by a Commonwealth enterprise agreement that authorises the IR Commission to conduct such a process (s 27 insertion noted). Subsequent amendments to s 28 and s 29 are noted as “[Section 28 amended: No. 53 of 2011 s. 55.]” and “[Section 29 amended: No. 53 of 2011 s. 56.]” respectively. Section 31 also carries an amendment note “[Section 31 amended: No. 53 of 2011 s. 57.]”.

The compilation table documents the assent and commencement dates for these changes and provides a clear trail of amendments up to the 2011 reform. The Act’s notes show that the text as provided incorporates those 2011 amendments.

No other amending statutes or dates are provided in the compilation table embedded in the source. For further amendment history after 2012 or for any subsequent legislative or regulatory changes that may affect forms, procedures or the cross-referenced IR Act sections, practitioners must consult the Western Australian legislation database, the IR Commission’s publications and the gazette entries, because the Act authorises the Chief Commissioner to approve forms and to make regulations that will affect practice and procedure (s 31).

The Act text provided contains no judicial decisions, court judgments or tribunal determinations that interpret or apply the Employment Dispute Resolution Act 2008. The Act itself does not list or cite any cases, nor does the compilation table or marginal notes cite litigation. As a result, there is no internal litigation history to summarise from the source document.

What the Act does provide that affects potential litigation is procedural and substantive constraints that will matter in any subsequent court or tribunal contest. For example, the statutory inadmissibility and confidentiality regime for mediation and referral communications (s 24) will affect the availability of evidence in other proceedings. However the Act also creates narrow exceptions to that inadmissibility, including where the parties consent or where there is a dispute about whether a binding agreement was made (s 24(4)(a)-(b)). These exceptions are likely to be focal points in any litigation concerning whether statements made in mediation should be admissible to prove or disprove the existence or terms of a settlement.

The Act limits appeals from decisions made in referral proceedings unless the referral agreement expressly provides for appeals, in which case the IR Act s 49 applies (s 22). This provision creates a contractualised appeal architecture that could be the subject of litigation where parties dispute whether an appeal right exists under the terms of a referral agreement. Any such litigation would require reference to the particular referral agreement and to the application of IR Act s 49 as specified.

Enforcement of binding outcomes is channelled into the IR Act (s 20), and the details of enforcement, including any penalties or remedies, will depend on the IR Act’s provisions and regulations made under s 31. Litigation concerning enforcement would therefore likely engage the IR Act’s jurisprudence and procedures, not this Act in isolation.

Because the source contains no reported decisions, practitioners must look to the IR Act caselaw and any subsequent decisions interpreting the Employment Dispute Resolution Act when advising clients. The Act’s operation in practice, including whether the IR Commission declines to mediate or to act under a referral and whether the confidentiality protections are upheld in later proceedings, will generate interpretive litigation over time. For present purposes, the Act itself provides the statutory framework but not any interpretive judicial history.

The Act includes several provisions that can catch parties, advisers and organisations unaware if they are not closely attended to in drafting agreements and preparing proceedings.

Consent requirement for mediation. The Commission must be satisfied that each party has consented before acting as mediator (s 6(2)). Consent is not automatic and must be demonstrated in the manner and form approved by the Chief Commissioner for requests (s 7(2)). Failure to secure or document consent in the approved form can defeat access to mediation.

Limits on binding effect of mediation outcomes. Mediation is, by design, non-compulsory and non-decisory: the Commission cannot compel action or make determinations in mediation (s 10(2)). Although a mediation settlement agreement can be registered and enforced as an industrial agreement (s 11(2)), those settlements cannot vary existing awards, orders or industrial agreements under the IR Act (s 11(3)). If parties want a binding decision that can vary awards for the parties, they must use a referral agreement and ensure the Commission is empowered to make binding orders (s 12(4)-(5), s 18(2)).

Withdrawal rules and default term for referral agreements. Parties to a referral agreement cannot withdraw without the written agreement of the other parties (s 12(8)). Referral agreements default to a three-year duration if no expiry is specified (s 12(6)(b)(iii)). Parties entering referral agreements should be aware they may be contractually bound for up to three years unless an earlier expiry or withdrawal mechanism is negotiated.

Binding effect of referral decisions only if contractually provided. A decision, direction or determination of the Commission under a referral does not bind the parties unless the referral agreement provides for binding effect (s 19). Parties who expect enforceable, determinative outcomes must draft the referral agreement to confer binding status on decisions or secure the Commission’s agreement to make orders under s 18.

Form and administrative compliance. Requests, appointments of group representatives and referrals must be made in forms approved by the Chief Commissioner (ss 7(2), 8(2), 13(2)). The Chief Commissioner has discretion over these administrative requirements. Failure to use the approved form can result in procedural rejection or delay.

Commission’s discretion to decline or discontinue. The Commission may, at any time after a request or referral, decide to take no action, or to suspend or discontinue mediation or referral if proceedings exist in another State or Commonwealth law, or for any other reasonable cause (ss 9, 21). That gives the Commission broad gatekeeping discretion which can interrupt strategies that assume continuity of the Commission’s involvement.

Confidentiality exceptions. Communications and documents used in mediation and referral are generally confidential and inadmissible (s 24). However there are exceptions: they become admissible if the parties consent or where the evidence is needed to resolve a dispute about whether the parties entered into a binding agreement (s 24(4)). Parties who rely on confidentiality as a shield should document their intentions and be aware the shield is not absolute.

Representation and corporate parties. Bodies corporate may be represented by officers under s 17(b). For groups, representation appointments must be in the Chief Commissioner’s approved form (s 8(2)). Particular attention is required where groups intend to give broad authority to a representative, as the approved form may restrict scope and the Commission will rely on its satisfaction about representation.

Interaction with Commonwealth enterprise agreements and federal law. Division 4 invokes the Fair Work Act when a Commonwealth enterprise agreement authorises the IR Commission to conduct dispute settlement procedures (ss 27-29). Parties must check whether the enterprise agreement permits such a referral and whether Fair Work Act s 740 will apply to the process (s 29(2)). Assuming federal law applies, different outcomes for enforceability, appeals and procedure may follow.

Enforcement uncertainty. Because enforcement is imported from the IR Act and subject to regulations, the practical remedies, timeframes and penalties depend on those provisions and any regulations made under s 31. Practitioners who assume a particular enforcement process must confirm the current IR Act provisions and any regulations.

No express monetary penalties in the Act. The Act does not itself impose fines or criminal sanctions for breaches. Parties therefore must rely on enforcement via the IR Act or contract remedies in referral agreements. This means enforcement outcomes may not be immediate or may require separate proceedings under the IR Act.

Publication and privacy controls. The Commission may order non-publication of evidence or documents (s 25(2)) and can enforce those orders under IR Act s 84A subject to regulations (s 25(3)). Practitioners should plan for the interplay between confidentiality under s 24 and non-publication orders under s 25 and how those interact with any statutory reporting obligations outside the Act.

Drafting oversight on appeal rights. Referral agreements should address whether appeals are permitted, because s 22 precludes appeals unless the referral agreement allows them. Parties who later discover they want appeal rights will find them unavailable unless the referral agreement expressly preserves them.

To use the processes created by the Act effectively and to reduce procedural risk, parties and advisers should take the following concrete steps anchored in the Act’s provisions.

1. Confirm the nature of the dispute and whether it qualifies. The Act defines “employment dispute” broadly and includes potential disputes and disputes surviving termination (s 4; s 3(2)). Confirm the matter falls within that definition when framing a request or referral.

2. Obtain and document consent for mediation in the approved form. The Commission must be satisfied that each party has consented before it will mediate (s 6(2)). Use the application form approved by the Chief Commissioner, as required by s 7(2). If a party is a group, ensure the representative appointment is made in the Chief Commissioner’s approved form (s 8(2)).

3. If a binding outcome is desired, negotiate a referral agreement that explicitly provides for binding decisions. A referral agreement can authorise the Commission to arbitrate and provide remedies otherwise available under the IR Act (s 12(4)-(5)). To obtain binding Commission determinations, the referral agreement should expressly provide that decisions, directions or determinations will bind the parties (s 19). If parties wish to preserve appeal rights, include an express appeal provision because s 22 bars appeals unless the referral agreement permits them.

4. Draft the referral agreement with attention to duration and withdrawal clauses. By default a referral agreement expires on the third anniversary of commencement if no expiry date is specified, and a party cannot unilaterally withdraw without written agreement of the other parties (ss 12(6)-(8)). If flexibility is required, build in terms for early termination, renewal and withdrawal procedures.

5. Specify scope and powers in the referral agreement. The Act allows parties to define which Commission functions apply to the disputes covered by the referral (s 12(4)), and the Commission may perform functions beyond those specified if parties agree (s 15(1)(a)). To avoid later jurisdictional disagreements, specify the precise powers asked of the Commission, whether arbitration is authorised, whether orders can vary awards for the parties, and whether the Commission may exercise the IR Act powers listed in s 15(1)(c).

6. Prepare for and respect confidentiality and admissibility rules. Communications and documents in mediation and referral proceedings are ordinarily inadmissible and subject to a duty of confidence (s 24(1)-(2)). Make clear record-keeping and disclosure policies, and consider whether particular evidence may be admissible under s 24(4). If you seek to rely on mediation communications in future litigation, preserve consent or other grounds for admissibility at the time.

7. Use the Commission’s approved forms for referrals and other documents. Referrals must be made in a form approved by the Chief Commissioner (s 13(2)). Failing to comply with prescribed form requirements risks procedural rejection.

8. Anticipate the Commission’s gatekeeping discretion. The Commission may decline, suspend or discontinue mediation or referral where an employment dispute should be resolved in some other way, or if proceedings are already before a State or Commonwealth body, or for any other reasonable cause (ss 9, 21). If litigation or statutory proceedings have already been commenced, consider whether this Act’s processes are available.

9. If operating under a Commonwealth enterprise agreement, confirm federal authorisation and Fair Work Act applicability. For parties bound by a Commonwealth enterprise agreement that authorises the IR Commission to operate under the agreement, apply to the IR Commission for it to conduct the dispute resolution process and note that the Fair Work Act s 740 will apply to the process (ss 27-29). Verify the enterprise agreement’s dispute settlement clause before pursuing this route.

10. Consider enforcement strategy at the drafting stage. Because the Act depends on the IR Act and regulations for enforcement detail, consider specifying in the referral agreement how breaches of Commission orders or settlement terms will be remedied, and be prepared to rely on enforcement under the IR Act (s 20) once an instrument is registered or an order is made (s 18). If privacy or non-publication orders are required, anticipate enforcement under the IR Act regime (s 25(3)).

11. Check regulations and IR Act cross-references before proceeding. The Act authorises the Chief Commissioner to make regulations and to prescribe practice and procedure, and it allows the IR Act to be applied with modifications under those regulations (s 31). Practitioners must consult the current IR Act and any regulations made under s 31 to understand the applicable procedural rules and enforcement mechanisms.

12. Record settlement and registration carefully. If an agreement is reached in mediation and parties want enforceability, seek registration of the mediation settlement agreement by the Commission with parties’ consent so the settlement is enforceable under the IR Act (s 11(1)-(2)). Under referral proceedings, if the Commission and parties agree an order should be made in terms of a settlement, the Commission can make the order or, where an order is not required, file a memorandum of terms (s 18(1)).

13. Plan for representation and corporate participation. Ensure that corporate parties identify the officers authorised to represent them to satisfy s 17(b), and that group representatives’ authority is documented in the Chief Commissioner’s approved form if the group is to be represented (s 8).

14. Build confidentiality and admissibility clauses into settlement drafting. Even though s 24 provides a statutory confidentiality regime, parties may wish to include express confidentiality clauses and determine whether, and under what circumstances, consent to admissibility will be given, aligning those contractual provisions with the statutory exceptions.

15. Monitor the IR Commission’s published examples of functions. The Commission must publish examples of functions it may perform under referral agreements (s 23). Reviewing those examples will help set expectations about what the Commission is likely to do in practice and inform drafting and negotiation.

Following these procedural steps, and cross-checking them against the current IR Act provisions and any regulations, will reduce the risk of administrative rejection, unsuccessful enforcement, unintended loss of rights, or surprise disclosures.