Commencing on 1 September 2024 in South Australia, amongst a raft of other changes, is the introduction of a conciliation, mediation, and arbitration model for work health and safety disputes, where certain parties will be able to lodge disputes in the South Australian Employment Tribunal. The new model is aimed at ensuring there is a mechanism for the prompt resolution of work health and safety disputes and has already seen extensive use by unions.
Amendments have been made by including new provisions to apply to disputes that remain unresolved at least 24 hours after a SafeWork SA Inspector has been appointed to assist in resolving the dispute.
If the dispute remains unresolved at least 24 hours after an inspector has been appointed, then a party to the dispute may give written notice of the dispute to the South Australian Employment Tribunal (SAET).
A WHS matter for the purpose of bringing a dispute to the SAET comprises any of the following matters:
- access to information by a health and safety representative under section 70(1)(c);
- a request by a health and safety representative for an assistant to have access to the workplace under section 70(1)(g);
- a matter about work health and safety that is an issue to which Division 5 – Issue Resolution applies; or
- an issue about cessation of work under Division 6.
When commencing an action in the SAET, written notice of the dispute must be given. The notice must state each of the following matters;
- the names of the parties to the dispute;
- the workplace where the dispute exists;
- the WHS matter the subject of the dispute; and
- if an inspector has been appointed to assist in the dispute, and if the decision made by the inspector is currently under review.
Once a notice has been received SAET will publish the notice on a website.
If a relevant union for a worker affected by the WHS matter is not named as a party to the dispute, the union may notify SAET in writing that they want to participate in the resolution of the dispute.
SAET will then deal with the dispute as it sees fit for the prompt settlement of the dispute.
This may include mediation, conciliation or arbitration. SAET may also make a recommendation or make an order (if the matter has been dealt with through arbitration). If there are reasonable grounds to believe an offence has been committed, they may refer the matter to SafeWork SA for investigation.
SAET may also review a decision that was made by an inspector which either confirms, varies or sets aside the compliance decision made by the inspector.
SAET may also decide not to deal with the dispute pursuant to section 102E of the Act.
This new dispute resolution process raises some issues for employers. Despite the multitude of options for consultation and resolution which are already available, this brings additional regulation at an early stage in disputes, including involving SafeWork SA Inspectors. Further, the dispute notice is published online (and is therefore publicly available) before the dispute is either resolved or the employer has the opportunity to respond. It is important to ensure that employers seek early advice on any suggestion of a WHS dispute, to either head off a SAET application, or be ready to respond if an application becomes unavoidable.
This article was written by Chris Morey, Special Counsel.
