109. Dispute resolution
109.1: If a dispute relates to:
- a matter arising under the Agreement, or
- the NES
this term sets out procedures to settle the dispute.
109.2: An employee or union who is covered by this Agreement may initiate and/or be a party to a dispute under this term.
109.3: An employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this term. Representatives will be recognised and dealt with in good faith.
109.4: Parties to the dispute must attempt to resolve the dispute at the workplace level, by discussion between the employee or employees and relevant managers. Parties to the dispute will notify higher level managers to assist in the resolution of the dispute. Parties will give genuine consideration to proposals to resolve the dispute.
109.5: For the purposes of subclause 109.4, ‘discussions’ means, amongst other things:
- discussions based on the provision of information and explanation, cooperation and negotiation
- discussions that are convened as soon as practicable with the appropriate level of ATO management and dealt with in a timely fashion
- ATO confirming in writing the outcome of the discussions.
109.6: If a dispute about a matter arising under this Agreement is unable to be resolved at the workplace level, and all appropriate steps under subclause 109.4 have been taken, a party to the dispute may refer the dispute to the Fair Work Commission.
109.7: The Fair Work Commission may deal with the dispute in 2 stages:
- the Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation, and
- if the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then
- arbitrate the dispute, and
- make a determination that is binding on the parties.
Note: If the Fair Work Commission arbitrates the dispute, it may also use the powers that are available to it under the FW Act. A decision that the Fair Work Commission makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the FW Act. Therefore, an appeal may be made against the decision.
109.8: While the parties are attempting to resolve the dispute using the procedures in this term:
- an employee must continue to perform their work as they would normally in accordance with established custom and practice at the ATO that existed immediately prior to the dispute arising unless they have a reasonable concern about an imminent risk to their health or safety, and
- subject to subclause 109.8(a), an employee must comply with a direction given by the delegate to perform other available work at the same workplace, or at another workplace, unless
- the work is not safe, or
- applicable work health and safety legislation would not permit the work to be performed, or
- the work is not appropriate for the employee to perform, or
- there are other reasonable grounds for the employee to refuse to comply with the direction.
109.9: The parties to the dispute agree to be bound by a decision made by the Fair Work Commission in accordance with this term.
109.10: Any disputes arising under Australian Taxation Office (ATO) Enterprise Agreement 2017 or the NES that were formally notified under clause 100 of that agreement before the commencement of this Agreement, that remain unresolved at the date of commencement of this Agreement, will be progressed under the dispute resolution procedures in this Agreement.
Leave of absence to attend proceedings
109.11: Where the provisions of subclauses 109.1 to 109.6 have been complied with, and to assist in the resolution of the matter, the employee, and/or the union delegate or other employee representative referred to in subclause 109.2, or employee required to provide evidence, will be granted paid time to attend dispute resolution processes and proceedings in the Fair Work Commission arising from referral of the matter in 109.6.