Page 3324 - Week 09 - Thursday, 22 August 2019
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The changes to the process for resolving fair work matters also include compulsory mediation. The government recognises that access to non-adversarial methods of dispute resolution has significant advantages for parties. It promotes the early resolution of disputes and can be much more cost-efficient and timelier than the court process. This is particularly the case with disputes seeking small claims.
Mediation is a less adversarial approach to conflict resolution where a mediator assists parties to negotiate an agreement to resolve their dispute. A mediator’s functions can include encouraging settlement of the dispute, promoting the open exchange of information between parties and providing information to the parties about the operation of relevant laws.
In fair work matters, where there can often be power imbalances between employers and employees, mediation provides a more equal field in which parties may reach an agreed solution to their matter. By encouraging the early resolution of disputes, compulsory mediation will also have the added benefit of relieving pressure on the court system.
This bill makes a number of amendments that are aimed in particular at small claims in fair work matters, which are those of $20,000. The amendments include allowing representation of workers by their unions, and businesses by industry associations. This is an important amendment made by the government to enable more accessible representation to ensure that Canberrans can assert their rights in a more accessible and less formal setting, reduce power imbalances between big business and workers, and make the resolution of complaints more affordable.
As part of its focus on ensuring accessibility for small claims, this bill also ensures that people who go to the ACT Civil and Administrative Tribunal, or ACAT, are not disadvantaged. In our justice system normally the ACAT is the place to go for any claim under $25,000 in value. From $25,000 to $250,000, claims go to the Magistrates Court. However, the ACAT is prohibited due to federal laws from hearing fair work claims. Accordingly, the bill makes amendments to the Magistrates Court Act and the ACAT Act to clarify that no monetary limits are placed on fair work claims that are brought to the Magistrates Court.
There may be times, however, where the ACAT becomes aware that a fair work claim has arisen in the context of a person’s dispute. As the ACAT has no jurisdiction to hear the fair work claim, the bill amends the ACAT Act to require the tribunal to remove the civil dispute application and the fair work matter to the Magistrates Court, either on its own initiative or on application by a party to the matter. This will avoid duplication of proceedings and enable the fair and efficient resolution of all issues in dispute in a single forum.
This bill does more than help people to recover their entitlements and wages. It also supports the government in its efforts to hold businesses criminally responsible when they breach our health and safety laws. Through recent court experience, the Director of Public Prosecutions identified a range of legal issues involved in the prosecution of corporations. These issues included the application of the Confiscation of Criminal Assets Act to those prosecutions.
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