Commonwealth Consolidated Acts

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Disputes about the operation of this Division

Application of this section

  (1)   This section applies to a dispute between an employer and an employee about the operation of this Division if:

  (a)   the dispute relates to a request by the employee to the employer under subsection   65(1) for a change in working arrangements relating to circumstances that apply to the employee; and

  (b)   either:

  (i)   the employer has refused the request; or

  (ii)   21 days have passed since the employee made the request, and the employer has not given the employee a written response to the request under section   65A.

Note 1:   Modern awards and enterprise agreements must include a term that provides a procedure for settling disputes in relation to the National Employment Standards (see paragraph   146(b) and subsection   186(6)).

Note 2:   Subsection   55(4) permits inclusion of terms that are ancillary or incidental to, or that supplement, the National Employment Standards. However, a term of a modern award or an enterprise agreement has no effect to the extent it contravenes section   55 (see section   56).

Resolving disputes

  (2)   In the first instance, the parties to the dispute must attempt to resolve the dispute at the workplace level, by discussions between the parties.

FWC may deal with disputes

  (3)   If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the dispute to the FWC.

  (4)   If a dispute is referred under subsection   (3):

  (a)   the FWC must first deal with the dispute by means other than arbitration, unless there are exceptional circumstances; and

  (b)   the FWC may deal with the dispute by arbitration in accordance with section   65C.

Note:   For the purposes of paragraph   (a), the FWC may deal with the dispute as it considers appropriate. The FWC commonly deals with disputes by conciliation. The FWC may also deal with the dispute by mediation, making a recommendation or expressing an opinion (see subsection   595(2)).


  (5)   The employer or employee may appoint a person or industrial association to provide the employer or employee (as the case may be) with support or representation for the purposes of:

  (a)   resolving the dispute; or

  (b)   the FWC dealing with the dispute.

Note:   A person may be represented by a lawyer or paid agent in a matter before the FWC only with the permission of the FWC (see section   596).

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