The Commission can assist parties in resolving a wide range of disputes under the Fair Work Act.

The majority of disputes relate to the terms of an enterprise agreement or a modern award. The Commission’s capacity to deal with such disputes depends on the nature of the dispute resolution term in the relevant agreement or modern award. Most commonly, the Commission is empowered to resolve a dispute through conciliation, mediation, an opinion or a recommendation. Some agreement terms also empower the Commission to arbitrate a dispute with a binding determination.

Applications may also be lodged:

• under s.526 of the Fair Work Act, to deal with disputes where employees have been stood down due to industrial action, a breakdown of machinery or equipment or any other stoppage of work where the employer cannot reasonably be held responsible
• under s.699 or s.709 of the repealed Workplace Relations Act 1996, as amended by the Workplace Relations Amendment (Work Choices) Act 2005, to deal with disputes involving agreements that were made under the Workplace Relations Act 1996.

Performance

In 2018–19:

• 1,579 applications in relation to disputes were lodged
• 1,569 applications (99 per cent), including 35 applications about flexible working arrangements, were made under s.739 of the Fair Work Act.

Each year, the large majority (around 99 per cent) of applications to deal with disputes in relation to awards, agreements and contracts are made under s.739.

The number of applications made under s.739 of the Fair Work Act decreased by 3 per cent, to 1,569 in 2018–19 after decreasing by 17 per cent in 2017–18, as shown in Table 26. This is consistent with a longer-term decline, with the number of matters finalised decreasing by 23 per cent between 2015–16 and 2018–19.

Consistent with results in previous years, only a small number of applications in 2018–19 were lodged under s.526 of the Fair Work Act. In 2018–19, there were no applications made under the Workplace Relations Act.

Table 26: Dispute applications – applications lodged and finalised

Timeliness

In 2018–19, the Commission held the first conference dealing with a dispute in a median of 19 days from lodgment of the application, with a conference being held within 49 days of lodgment in 90 per cent of cases, as shown in Table 27. This is consistent with the time taken to deal with a dispute in 2017–18.

Table 27: Dispute applications – timeliness

Significant decision – should personal leave be calculated in hours or days?

Under the National Employment Standards (NES), employees in Australia are entitled to 10 days of personal/carer’s leave per year. The Australian Workers’ Union (AWU) and AstraZeneca disputed how the company accrues and deducts personal/carer’s leave for employees undertaking shift work. The length of shifts varied between employees between 8, 10.28 and 12 hours. As AstraZeneca calculated leave based on hours and not days, this meant that employees could exhaust their personal/carer’s leave entitlement in 6, 7 or 9.5 shifts respectively. The AWU argued that this was less than the employees’ NES entitlement.

The Commission found that leave is accrued in days and not hours. It noted that this might result in workers accruing more hours of paid personal/carer’s leave in some cases. A day of leave is deducted when a day of leave is taken, regardless of the number of hours in a shift.

The decision in The The Australian Workers’ Union v AstraZeneca Pty Ltd is at [2018] FWC 4660.