Preventing conflict in the workplace



In the normal course of events, the prevention of disputes and conflict in the workplace is a key goal of employers and employees.

However, for one reason or another, disputes arise and so attention turns to their resolution. Unless carefully managed, workplace disputes have the potential to spin out of control and in so doing damage the foundation of all harmonious workplace relations - the trust and confidence between employers and employees.

Resolving disputes before they get out of hand and in a way that contributes to, and reinforces, the trust between the parties should be a key objective in successful workplace practices. Alternative Dispute Resolution (ADR) techniques can play a useful role in the achievement of this objective.

ADR, as a broad concept term, has been kicking around for well over a decade. It embraces a number of alternative methods of resolving disputes such as:

  • Attempts to reconcile disputants and conciliate between disputing parties;
  • The mediation of disputes, and;
  • Private arbitration.

Alternative methods of resolving disputes have developed as a response to the deficiencies (perceived and real) of the traditional court-based adversarial system.

The most common criticisms of the adversarial system focus on its cost and the snail's pace at which it moves. The legal profession and judiciary have not been blind to these problems and have had a leading hand in promoting ADR. Nevertheless, it is clear that there is plenty of scope for the wider application of ADR, particularly in the area of disputes between employees and their employers.

Industrial disputes

Federal Government policy is to give formal legislative recognition to mediation for industrial disputes.

Minister Peter Reith was issued a discussion paper in relation to the issue which suggests that mediation could be of assistance in resolving industrial disputes but that it would be a voluntary alternative or supplement to the formal processes of the Australian Industrial Relations Commission (AIRC).

At present, there is little incentive for the parties to use mediation as a means of resolving protracted disputes.

The "no disadvantage" test means employers have little negotiating flexibility. Meanwhile, industrially strong unions can engage in protracted disputes to enhance conditions with little recourse to the AIRC to "break" the dispute. In the absence of incentives that make ADR processes more attractive than recourse to industrial muscle, ADR will not usually be of assistance in disputes where there is an inequality of bargaining power between the parties

One option being explored by the Federal Government is for compulsory pre-strike ballots including the provision of notice by those intending to take industrial action, a cooling-off period and the availability of mediation options during the cool-off. Individual grievances

Some of the techniques that come under the ADR umbrella are in current usage in the area of unfair dismissal.

Both the AI RC and its NSW counterpart attempt the conciliation of unfair dismissal applications. There is, however, some concern about the uneven application of the technique. Additionally, many of the tribunals and commissions that deal with discrimination claims also apply ADR techniques by attempting to conciliate and mediate before turning to the commission-based arbitration as the final option.

Private sector provision

In addition to the ADR providers in the public sector, there are a number of organisations and individuals in the private sector that offer ADR services. As with all service provision, some care has to be exercised in the selection of appropriate ADR service providers to ensure they are appropriately qualified and experienced.

Autonomy

As noted above, there are a wide variety of techniques that come under the heading of ADR.

Outside of the cases where tribunals or commissions offer ADR as part of their own process, the parties to disputes are pretty much free to deploy the ADR technique that best suits their needs. Additionally, where the parties are able to select an appropriate technique, they also have the autonomy to select the third party that is to be involved in the resolution of their dispute.

Not arbitration

A critical principle of ADR is that a decision of the conciliator or mediator cannot be imposed on a party to the process. It is obviously important, therefore, that parties approach ADR genuinely seeking to resolve their issues.

Conclusion

ADR practice over the last decade or so tends to lend support to the view that these techniques have much to offer disputing industrial parties. However, they are not cost-free and can be counter-productive unless the parties enter the process with a fair degree of goodwill and the determination to make it work. In other words, ADR is not, and has never been, a quick-fix cure-all. It is, perhaps, just another of the many tools that are in the management kit bag.


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