Western Australian Consolidated Regulations Western Australian Consolidated Regulations[r. 33, 41]
Division 1 — Model provisions where —
• a relevant industrial authority is not the
arbitrator of disputes; and
• the employee
is not a represented person
Note: Part VID Division 8 of the Act contains
provisions relating to disputes under an EEA that apply regardless of the
provisions of the EEA.
In these
provisions —
dispute means a question, dispute or difficulty
that arises out of or in the course of employment under the EEA;
dispute notice means a notice under clause 4;
notice of a proposed arbitrator means a notice
under clause 9(2).
2. Joint arbitrations not affected
These provisions, or
any agreement or referral made under these provisions, do not affect
section 97WL of the Act (which relates to 2 or more employees of the same
employer agreeing to their disputes being dealt with in one arbitration).
3 . Commercial Arbitration Act 1985 not
applicable
The
Commercial Arbitration Act 1985 does not apply to the arbitration of a
dispute.
Subdivision 2 — Notice of dispute, and duty to attempt settlement
If the employer or the
employee considers that a dispute has arisen, he or she may give a written
notice to the other party —
(a)
stating that fact; and
(b)
setting out a brief description of the dispute.
The employer or the
employee may at any time withdraw a dispute notice by giving written notice of
the withdrawal —
(a) to
the other party; and
(b) if
the dispute has been referred for arbitration, to the arbitrator.
6. P a rties must try to settle dispute
(1) If a dispute
notice has been given, the employer and the employee must confer together and
make a genuine attempt to settle the dispute within the period of 42 days
from the day on which the dispute notice was given.
(2) Initially this may
be done by discussion between the employee and the employee’s immediate
supervisor.
(3)
However —
(a) if
the dispute is not settled in those discussions; and
(b)
there is a person in a management position above the immediate supervisor,
that person must have
discussions with the employee and they must attempt to settle the dispute.
If —
(a) a
dispute notice has been given; and
(b) the
parties settle the dispute by agreement,
the terms of the
settlement must be recorded in a written agreement that is signed by both
parties.
Subdivision 3 — Appointment of arbitrator
The arbitrator of any
dispute is to be
................................................................................................................
…............................................................................................................
( insert name, address and occupation of arbitrator )
or if he or she is for
any cause unable to act the arbitrator is to be
................................................................................................................
................................................................................................................
( insert name, address and occupation of alternative arbitrator )
Note: Instead of a named person, the holder of a designated office could be
inserted.
(1) This clause only
applies if the EEA does not name or designate any arbitrator of disputes.
(2) If a dispute
notice has been given, the employer or the employee may give to the other
party notice of a proposed arbitrator.
(3) Once a notice of a
proposed arbitrator has been given in relation to a dispute,
subclause (2) ceases to apply to that dispute so that neither party can
give another notice under that subclause.
(4) Except where
subclause (5)(b) applies, the parties must agree on and appoint an
arbitrator within 7 days after the notice of a proposed arbitrator was
given.
(5) If notice of a
proposed arbitrator —
(a) has
not been given; or
(b) has
been given later than 35 days after the dispute notice was given,
the parties must agree
on and appoint an arbitrator within 42 days after the dispute notice was
given.
(6) A notice under
subclause (2) may either —
(a) name
a person that the party wishes to act; or
(b) give
the names of several persons one of whom the party wishes to act,
as arbitrator of the
dispute.
(1) If this subclause
applies, the arbitrator is to be a person appointed by
….........................................................................................................
( designate an independent office‑holder )
Note: For example, the designated
office‑holder could be the chairperson for the time being of the Western
Australian Chapter of the Institute of Arbitrators and Mediators of Australia.
(2) Subclause (1)
applies if the employer and the employee have not appointed an arbitrator
within 7 days after notice of a proposed arbitrator has been given.
(3) Subclause (1)
also applies if —
(a)
notice of a proposed arbitrator —
(i)
has not been given; or
(ii)
has been given later than 35 days after the dispute
notice was given;
and
(b) the
employer and the employee have not appointed an arbitrator within 42 days
after the dispute notice was given.
(4) Subclause (1)
also applies if —
(a) the
arbitrator of disputes is named or designated in these provisions; but
(b) at
the end of the 42 nd day after the dispute notice was given no arbitrator so
named or designated is available and willing to act.
(5) Subclause (1)
also applies if —
(a) a
dispute has been referred for arbitration;
(b) the
arbitrator dies or becomes incapable of conducting the arbitration; and
(c) the
employer and the employee have not agreed on and made a new appointment as
provided by clause 11(3).
(6) If an arbitrator
appointed under subclause (1), before he or she enters the
arbitration —
(a)
dies;
(b)
becomes incapable of conducting the arbitration; or
(c) is
unavailable or unwilling to act,
a further appointment
is to be made under that subclause.
11. Appointment of substitute arbitrator
(1) This clause
applies if —
(a) a
dispute has been referred for arbitration; and
(b) an
arbitrator —
(i)
named or designated in these provisions; or
(ii)
appointed by the parties,
before he or she has
entered on the arbitration —
(iii)
dies;
(iv)
becomes incapable of conducting the arbitration; or
(v)
is unavailable or unwilling to act.
(2) This clause also
applies if —
(a) a
dispute has been referred for arbitration; and
(b)
after the arbitrator has entered on the arbitration, he or she dies or becomes
incapable of completing the arbitration.
(3) The employer and
the employee may, within 14 days after they have both received notice of
the death or other occurrence mentioned in subclause (1)(b), agree on who
is to act as the new arbitrator of the dispute and make an appointment
accordingly.
(4) On the appointment
of a new arbitrator under this clause in place of an arbitrator who has
entered on the arbitration, the new arbitrator is to enter on the arbitration
afresh except to the extent that the parties agree otherwise.
Subdivision 4 — Referral for arbitration
12. Referral available only if there is an
arbitrator
A dispute may be
referred for arbitration only if —
(a) an
arbitrator named or designated in these provisions is available and willing to
act; or
(b) an
arbitrator has been appointed under clause 9 or 10.
13. Joint referral at any time
The employer and the
employee may at any time jointly refer a dispute for arbitration if they have
made a genuine attempt to settle it but have failed to do so.
14. Referral to arbitration within 42 days
after notice given
Either the employer or
the employee may refer a dispute for arbitration if —
(a) it
is not settled by agreement; and
(b) the
terms of the settlement are not recorded as required by clause 7,
within 42 days
from the day on which the dispute notice was given.
(1) A dispute is
referred for arbitration by the giving of notice in writing to the arbitrator
that the dispute is referred.
(2) A notice under
subclause (1) must —
(a)
state the nature of the dispute; and
(b) be
accompanied by a copy of the EEA.
(3) If the referral is
made by one of the parties, the referring party must give a copy of the notice
to the other party.
Subdivision 5 — Arbitration proceedings
Note: Powers are also conferred on an arbitrator
by section 97WM of the Act.
(1) An arbitration
hearing is to be in private.
(2) An arbitrator may
give directions as to the persons who may be present at a hearing.
(3) An arbitrator may
determine that a hearing is to be conducted by —
(a)
telephone;
(b)
closed circuit television; or
(c) any
other means of communication.
17. Proceedings to be informal and speedy
An
arbitrator —
(a) is
not bound by technicalities, legal forms or rules of evidence; and
(b) must
act as speedily as the proper consideration of the dispute allows.
An arbitrator may hear
and determine a dispute in the absence of a party who has been given notice of
the hearing.
19. General power of arbitrator as to proceedings
Subject to these
provisions, an arbitrator may —
(a) give
directions as to any matter of procedure;
(b) give
any direction that in his opinion may assist in clarifying the issues in
dispute between the parties; and
(c)
otherwise conduct proceedings in such manner as he or she thinks fit.
Subdivision 6 — Costs of arbitration
(1) The cost of the
services of an arbitrator is to be borne —
(a) by
the employee, as to —
(i)
one half; or
(ii)
the maximum amount,
whichever is the
lesser; and
(b) as
to the balance, by the employer.
(2) In this
clause —
maximum amount means the amount for all employees
average weekly total earnings in Western Australia last published by the
Australian Statistician before the day on which the dispute was referred to
the arbitrator.
Note: This clause would not apply where, under
section 97WL of the Act 2 or more employees are involved in an
arbitration.
An employer or an
employee is to bear his or her own costs of representation in arbitration
proceedings.
Division 2 — Model provisions where —
• a relevant industrial authority is not the
arbitrator of disputes; and
• the employee
is a represented person
Note: Part VID Division 8 of the Act contains
provisions relating to disputes under an EEA that apply regardless of the
provisions of the EEA.
In these
provisions —
dispute means a question, dispute or difficulty
that arises out of or in the course of employment under the EEA;
dispute notice means a notice under clause 4;
party includes a representative where the context
so requires;
notice of a proposed arbitrator means a notice
under clause 9(2).
2. Joint arbitrations not affected
These provisions, or
any agreement or referral made under these provisions, do not affect
section 97WL of the Act (which relates to 2 or more employees of the same
employer agreeing to their disputes being dealt with in one arbitration).
3 . Commercial Arbitration Act 1985 not
applicable
The
Commercial Arbitration Act 1985 does not apply to the arbitration of a
dispute.
Subdivision 2 — Notice of dispute, and duty to attempt settlement
If the employer, the
employee or the representative considers that a dispute has arisen, he or she
may give a written notice —
(a)
stating that fact; and
(b)
setting out a brief description of the dispute,
to the employee and
his or her representative or to the employer, as the case may require.
(1) A dispute notice
may be withdrawn at any time by the giving of written notice of
withdrawal —
(a) to
each person to whom the dispute notice was given; and
(b) if
the dispute has been referred for arbitration, to the arbitrator.
(2) A notice of
withdrawal is to be given by the person who gave the notice of dispute, but if
it was given by the employee any notice of withdrawal is to be given by the
representative.
6. P a rties must try to settle dispute
(1) If a dispute
notice has been given, the employer, the employee and the representative must
confer together and make a genuine attempt to settle the dispute within the
period of 42 days from the day on which the dispute notice was given.
(2) Initially this may
be done by discussion between the employee, the representative and the
employee’s immediate supervisor.
(3)
However —
(a) if
the dispute is not settled in those discussions; and
(b)
there is a person in a management position above the immediate supervisor,
that person must have
discussions with the employee and the representative and they must attempt to
settle the dispute.
If —
(a) a
dispute notice has been given; and
(b) the
employer, the employee and the representative settle the dispute by agreement,
the terms of the
settlement must be recorded in a written agreement that is signed by the
employer and the representative.
Subdivision 3 — Appointment of arbitrator
The arbitrator of any
dispute is to be
................................................................................................................
…............................................................................................................
( insert name, address and occupation of arbitrator )
or if he or she is for
any cause unable to act the arbitrator is to be
................................................................................................................
................................................................................................................
( insert name, address and occupation of alternative arbitrator )
Note: Instead of a named person, the holder of a
designated office could be inserted.
(1) This clause only
applies if the EEA does not name or designate any arbitrator of disputes.
(2) If a dispute
notice has been given, the employer or the representative may give to the
other party notice of a proposed arbitrator.
(3) Once a notice of a
proposed arbitrator has been given in relation to a dispute,
subclause (2) ceases to apply to that dispute so that neither the
employer nor the representative can give another notice under that subclause.
(4) Except where
subclause (5)(b) applies, the employer and the representative must agree
on and appoint an arbitrator within 7 days after the notice of a proposed
arbitrator was given.
(5) If notice of a
proposed arbitrator —
(a) has
not been given; or
(b) has
been given later than 35 days after the dispute notice was given,
the employer and the
representative must agree on and appoint an arbitrator within 42 days
after the dispute notice was given.
(6) A notice under
subclause (2) may either —
(a) name
a person that the party wishes to act; or
(b) give
the names of several persons one of whom the party wishes to act,
as arbitrator of the
dispute.
(1) If this subclause
applies, the arbitrator is to be a person appointed by
….........................................................................................................
( designate an independent office‑holder )
Note: For example, the designated
office‑holder could be the chairperson for the time being of the Western
Australian Chapter of the Institute of Arbitrators and Mediators of Australia.
(2) Subclause (1)
applies if the employer and the representative have not appointed an
arbitrator within 7 days after notice of a proposed arbitrator has been
given.
(3) Subclause (1)
also applies if —
(a)
notice of a proposed arbitrator —
(i)
has not been given; or
(ii)
has been given later than 35 days after the dispute
notice was given;
and
(b) the
employer and the representative have not appointed an arbitrator within
42 days after the dispute notice was given.
(4) Subclause (1)
also applies if —
(a) the
arbitrator of disputes is named or designated in these provisions; but
(b) at
the end of the 42 nd day after the dispute notice was given no arbitrator so
named or designated is available and willing to act.
(5) Subclause (1)
also applies if —
(a) a
dispute has been referred for arbitration;
(b) the
arbitrator dies or becomes incapable of conducting the arbitration; and
(c) the
employer and the representative have not agreed on and made a new appointment
as provided by clause 11(3).
(6) If an arbitrator
appointed under subclause (1), before he or she enters the
arbitration —
(a)
dies;
(b)
becomes incapable of conducting the arbitration; or
(c) is
unavailable or unwilling to act,
a further appointment
is to be made under that subclause.
11. Appointment of substitute arbitrator
(1) This clause
applies if —
(a) a
dispute has been referred for arbitration; and
(b) an
arbitrator —
(i)
named or designated in these provisions; or
(ii)
appointed by the parties,
before he or she has
entered on the arbitration —
(iii)
dies;
(iv)
becomes incapable of conducting the arbitration; or
(v)
is unavailable or unwilling to act.
(2) This clause also
applies if —
(a) a
dispute has been referred for arbitration; and
(b)
after the arbitrator has entered on the arbitration, he or she dies or becomes
incapable of completing the arbitration.
(3) The employer and
the representative may, within 14 days after they have both received
notice of the death or other occurrence mentioned in subclause (b), agree
on who is to act as the new arbitrator of the dispute and make an appointment
accordingly.
(4) On the appointment
of a new arbitrator under this clause in place of an arbitrator who has
entered on the arbitration, the new arbitrator is to enter on the arbitration
afresh except to the extent that the parties agree otherwise.
Subdivision 4 — Referral for arbitration
12. Referral available only if there is an
arbitrator
A dispute may be
referred for arbitration only if —
(a) an
arbitrator named or designated in these provisions is available and willing to
act; or
(b) an
arbitrator has been appointed under clause 9 or 10.
13. Joint referral at any time
The employer and the
representative may at any time jointly refer a dispute for arbitration if they
have made a genuine attempt to settle it but have failed to do so.
14. Referral to arbitration within 42 days
after notice given
Either the employer or
the representative may refer a dispute for arbitration if —
(a) it
is not settled by agreement; and
(b) the
terms of the settlement are not recorded as required by clause 7,
within 42 days
from the day on which the dispute notice was given.
(1) A dispute is
referred for arbitration by the giving of notice in writing to the arbitrator
that the dispute is referred.
(2) A notice under
subclause (1) must —
(a)
state the nature of the dispute; and
(b) be
accompanied by a copy of the EEA.
(3) If the referral is
made by one of the parties, the referring party must give a copy of the notice
to the employer or the representative, as the case may be.
Subdivision 5 — Arbitration proceedings
Note: Powers are also conferred on an arbitrator
by section 97WM of the Act.
(1) An arbitration
hearing is to be in private.
(2) An arbitrator may
give directions as to the persons who may be present at a hearing.
(3) An arbitrator may
determine that a hearing is to be conducted by —
(a)
telephone;
(b)
closed circuit television; or
(c) any
other means of communication.
17. Proceedings to be informal and speedy
An
arbitrator —
(a) is
not bound by technicalities, legal forms or rules of evidence; and
(b) must
act as speedily as the proper consideration of the dispute allows.
An arbitrator may hear
and determine a dispute in the absence of the employer, the employee or the
representative if he or she has been given notice of the hearing.
19. General power of arbitrator as to proceedings
Subject to these
provisions, an arbitrator may —
(a) give
directions as to any matter of procedure;
(b) give
any direction that in his opinion may assist in clarifying the issues in
dispute between the parties; and
(c)
otherwise conduct proceedings in such manner as he or she thinks fit.
Subdivision 6 — Costs of arbitration
(1) The cost of the
services of an arbitrator is to be borne —
(a) by
the representative, as to —
(i)
one half; or
(ii)
the maximum amount,
whichever is the
lesser; and
(b) as
to the balance, by the employer.
(2) In this
clause —
maximum amount means the amount for all employees
average weekly total earnings in Western Australia last published by the
Australian Statistician before the day on which the dispute was referred to
the arbitrator.
Note: This clause would not apply where, under
section 97WL of the Act 2 or more employees are involved in an
arbitration.
An employer, an
employee or a representative is to bear his or her own costs of representation
in arbitration proceedings.
Division 3 — Model provisions where —
• a relevant industrial authority is the
arbitrator of disputes; and
• the employee
is not a represented person
Note: Part VID Division 8 of the Act contains
provisions relating to disputes under an EEA that apply regardless of the
provisions of the EEA.
In these
provisions —
dispute means a question, dispute or difficulty
that arises out of or in the course of employment under the EEA;
dispute notice means a notice under clause 4;
relevant industrial authority means the
…............................................................................................................
( specify the relevant authority by name )
2. Joint arbitrations not affected
These provisions, or
any agreement or referral made under these provisions, do not affect
section 97WL of the Act (which relates to 2 or more employees of the same
employer agreeing to their disputes being dealt with in one arbitration).
3 . Commercial Arbitration Act 1985 not
applicable
The
Commercial Arbitration Act 1985 does not apply to the arbitration of a
dispute.
Subdivision 2 — Notice of dispute, and duty to attempt settlement
If the employer or the
employee considers that a dispute has arisen, he or she may give a written
notice to the other party —
(a)
stating that fact; and
(b)
setting out a brief description of the dispute.
The employer or the
employee may at any time withdraw a dispute notice by giving written notice of
the withdrawal —
(a) to
the other party; and
(b) if
the dispute has been referred for arbitration, to the relevant industrial
authority.
6. P a rties must try to settle dispute
(1) If a dispute
notice has been given, the employer and the employee must confer together and
make a genuine attempt to settle the dispute within the period of 42 days
from the day on which the dispute notice was given.
(2) Initially this may
be done by discussion between the employee and the employee’s immediate
supervisor.
(3)
However —
(a) if
the dispute is not settled in those discussions; and
(b)
there is a person in a management position above the immediate supervisor,
that person must have
discussions with the employee and they must attempt to settle the dispute.
If —
(a) a
dispute notice has been given; and
(b) the
parties settle the dispute by agreement,
the terms of the
settlement must be recorded in a written agreement that is signed by both
parties.
Subdivision 3 — Referral for arbitration
The employer and the
employee may at any time jointly refer a dispute for arbitration by the
relevant industrial authority if they have made a genuine attempt to settle it
but have failed to do so.
9. Referral to arbitration within 42 days
after notice given
Either the employer or
the employee may refer a dispute for arbitration by the relevant industrial
authority if —
(a) it
is not settled by agreement; and
(b) the
terms of the settlement are not recorded as required by clause 7,
within 42 days
from the day on which the dispute notice was given.
A referral is to be
made in accordance with regulation 25 of the Industrial Relations
(Employer‑employee Agreements) Regulations 2002 .
Subdivision 4 — Arbitration proceedings
Note: Powers are also conferred on a relevant
industrial authority by section 97WM of the Act.
(1) An arbitration
hearing is to be in private.
(2) The relevant
industrial authority may give directions as to the persons who may be present
at a hearing.
(3) The relevant
industrial authority may determine that a hearing is to be conducted
by —
(a)
telephone;
(b)
closed circuit television; or
(c) any
other means of communication.
12. Proceedings to be informal and speedy
The relevant
industrial authority —
(a) is
not bound by technicalities, legal forms or rules of evidence; and
(b) must
act as speedily as the proper consideration of the dispute allows.
The relevant
industrial authority may hear and determine a dispute in the absence of a
party who has been given notice of the hearing.
14. General powers as to proceedings
(1) The relevant
industrial authority may —
(a) give
directions as to any matter of procedure;
(b) give
any direction that in the opinion of the authority may assist in clarifying
the issues in dispute between the parties; and
(c)
otherwise conduct proceedings in such manner as the authority thinks fit.
(2) Subclause (1)
is subject to —
(a)
these provisions; and
(b) Part
3 Division 2 of the Industrial Relations (Employer‑employee
Agreements) Regulations 2002.
Division 4 — Model provisions where —
• a relevant industrial authority is the
arbitrator of disputes; and
• the employee
is a represented person
Note: Part VID Division 8 of the Act contains
provisions relating to disputes under an EEA that apply regardless of the
provisions of the EEA.
In these
provisions —
dispute means a question, dispute or difficulty
that arises out of or in the course of employment under the EEA;
dispute notice means a notice under clause 4;
relevant industrial authority means the
…............................................................................................................
( specify the relevant authority by name )
2. Joint arbitrations not affected
These provisions, or
any agreement or referral made under these provisions, do not affect
section 97WL of the Act (which relates to 2 or more employees of the same
employer agreeing to their disputes being dealt with in one arbitration).
3 . Commercial Arbitration Act 1985 not
applicable
The
Commercial Arbitration Act 1985 does not apply to the arbitration of a
dispute.
Subdivision 2 — Notice of dispute, and duty to attempt settlement
If the employer, the
employee or the representative considers that a dispute has arisen, he or she
may give a written notice to the other party —
(a)
stating that fact; and
(b)
setting out a brief description of the dispute,
to the employee and
his or her representative or to the employer, as the case may require.
(1) A dispute notice
may be withdrawn at any time by the giving of written notice of
withdrawal —
(a) to
each person to whom the dispute notice was given; and
(b) if
the dispute has been referred for arbitration, to the relevant industrial
authority.
(2) A notice of
withdrawal is to be given by the person who gave the dispute notice, but if it
was given by the employee any notice of withdrawal is to be given by the
representative.
6. P a rties must try to settle dispute
(1) If a dispute
notice has been given, the employer, the employee and the representative must
confer together and make a genuine attempt to settle the dispute within the
period of 42 days from the day on which the dispute notice was given.
(2) Initially this may
be done by discussion between the employee, the representative and the
employee’s immediate supervisor.
(3)
However —
(a) if
the dispute is not settled in those discussions; and
(b)
there is a person in a management position above the immediate supervisor,
that person must have
discussions with the employee and the representative and they must attempt to
settle the dispute.
If —
(a) a
dispute notice has been given; and
(b) the
employer, the employee and the representative settle the dispute by agreement,
the terms of the
settlement must be recorded in a written agreement that is signed by the
employer and the representative.
Subdivision 3 — Referral for arbitration
The employer and the
representative may at any time jointly refer a dispute for arbitration by the
relevant industrial authority if they have made a genuine attempt to settle it
but have failed to do so.
9. Referral to arbitration within 42 days
after notice given
Either the employer or
the representative may refer a dispute for arbitration by the relevant
industrial authority if —
(a) it
is not settled by agreement; and
(b) the
terms of the settlement are not recorded as required by clause 7,
within 42 days
from the day on which the dispute notice was given.
A referral is to be
made in accordance with regulation 25 of the Industrial Relations
(Employer‑employee Agreements) Regulations 2002 .
Subdivision 4 — Arbitration proceedings
Note: Powers are also conferred on a relevant
industrial authority by section 97WM of the Act.
(1) An arbitration
hearing is to be in private.
(2) The relevant
industrial authority may give directions as to the persons who may be present
at a hearing.
(3) The relevant
industrial authority may determine that a hearing is to be conducted
by —
(a)
telephone;
(b)
closed circuit television; or
(c) any
other means of communication.
12. Proceedings to be informal and speedy
The relevant
industrial authority —
(a) is
not bound by technicalities, legal forms or rules of evidence; and
(b) must
act as speedily as the proper consideration of the dispute allows.
The relevant
industrial authority may hear and determine a dispute in the absence of a
party who has been given notice of the hearing.
14. General powers as to proceedings
(1) The relevant
industrial authority may —
(a) give
directions as to any matter of procedure;
(b) give
any direction that in the opinion of the authority may assist in clarifying
the issues in dispute between the parties; and
(c)
otherwise conduct proceedings in such manner as the authority thinks fit.
(2) Subclause (1)
is subject to —
(a)
these provisions; and
(b) Part
3 Division 2 of the Industrial Relations (Employer‑employee
Agreements) Regulations 2002.