Disputes don’t just cost organisations large amounts of money – they can also have a negative impact on brand loyalty, workforce morale, productivity, shareholder confidence and staff turnover. Teresa Russell talks with workplace mediation experts about the value of alternative dispute resolution systems in the wake of WorkChoices
Conflict inevitably lurks below the surface in any closely linked group of people,” says Sir Laurence Street, a well-known, Sydney-based, commercial mediator. “The way we handle conflict has changed over the years from using a deciding mechanism (such as the courts or tribunals) to a more consensual orientation. Mediation is now virtually mainstream and is an accepted part of an approach to handling conflict,” he says.
Types of disputes
The nature of disputes has changed over the decades, as the nature of work has changed. In the last decade, both the declining power of unions in Australia and the impact of WorkChoices legislation have affected the nature and type of disputes.
In the last five to ten years, workers have become more assertive when it comes to getting their industrial relations rights, according to Steve Lancken, principal of The Trillium Group. “Workers are feeling more isolated because they feel they don’t have support from their unions. Disputes have become more personal in nature – especially between managers and subordinates. These disputes get escalated so the parties can get someone to pay attention to their grievances,” he says.
The main increase has been in contractual disputes between small businesses, says Steve Gibbeson, training manager at Australian Commercial Disputes Centre (ACDC). “There has also been an increase in the number of disputes in areas such as health, sport and entertainment, building and construction, telecommunications and finance, as those industries have expanded,” he says. Issues between employees and management include harassment, bullying, and recruitment and selection issues.
Jennie Mansfield, partner at Blake Dawson Waldron’s employment and safety team, says she has seen an increase in allegations of bullying and harassment in the workplace – not necessarily sexual in nature. “The nature of the complaint can be that supervisors are micromanaging people, playing favourites, undermining someone’s confidence or professional decisions, or speaking to them in an unprofessional manner. There is now a raised awareness that bullying is a health and safety issue,” she says.
Mansfield also notes that the timing of a grievance can occur after an employee receives a poor performance appraisal and has been put on a work improvement program.
Frank Hardy, vice-president of the Stitt Feld Handy Group based in Canada, has consulted in workplace mediation in Australia, Canada, the UK, US and the Caribbean. He asserts that there is more scope for conflict with high levels of change in organisations.
“Although behavioural norms are different in each culture, you see all behaviours in all cultures. The USA has a far more individual approach to conflict, whereas Australia and Canada have systems of dispute resolution that end in places other than courts,” he says.
In case of dispute
There are currently over 10,000 contracts in place in Australia that require parties to refer to the ACDC in the case of a dispute.
Mansfield says she tends not to write contracts with dispute resolution clauses that give a specific recommendation about which provider to use. “They need to find mediators with the experience in the type of ADR that they think will suit them. Although WorkChoices has allowed parties to choose someone other than the AIRC [Australian Industrial Relations Commission], it is not enormously common to go elsewhere. The AIRC and state IRCs are well known, well resourced and free,” says Mansfield.
The role of HR
HR professionals in organisations may take one of several roles in the case of workplace conflict. They may act as a mediator, as an arbitrator, as a representative of management or as the provider and co-ordinator of outsourced ADR professionals.
“HR must know about mediation and when it is appropriate to use it. It is HR’s responsibility to initially investigate any conflict and decide whether natural justice should prevail if there has been a breach of a code of conduct, for example,” says Gibbeson.
“In small organisations, it is impossible for an HR manager to be a mediator, because there is a perception that they do management’s work. In larger organisations with HR teams, HR managers can be trained in negotiation and conflict management skills, then act as mediators in divisions other than the one they usually work in,” says Lancken.
“Some companies have arrangements with other companies to provide each other with mediators in the case of conflict. Higher level conflict tends to need external mediators, but it is cheaper to use internal resources where possible,” he adds.
Regardless of their professional qualifications, good mediators possess the qualities of humanity and humility, according to Sir Laurence. “They help the parties to a conflict understand each other’s point of view and to resolve the dispute themselves. It is not a decision-making role,” he stresses.
Impact of WorkChoices
The Federal Government’s amendment to the Workplace Relations Act, known as WorkChoices, has had a profound impact on a large section of Australia’s workforce.
As recently as 13 February 2007, a study by Queensland’s Griffith Business School has found that many women, especially in the private sector, are worse off under WorkChoices, because of the loss of pay and other conditions of employment.
Gibbeson says that although a lot of AWAs have retained the same conditions, he expects there will be an increase in the numbers of disputes over time. He predicts this will occur as commercial pressures increase and employers get to know the boundaries of the legislation.
Mansfield notes that WorkChoices has significantly decreased the numbers of industrial disputes, due to the process that now must be followed prior to taking industrial action. “Perhaps that is why there is more interest in individual dispute resolution,” she suggests.
Under the legislation, parties to a dispute may be eligible for a grant of up to $1,500 under the Alternative Dispute Resolution Assistance Scheme (ADRAS). This grant is to be used to purchase private ADR services. A long list of eligibility criteria is published on the WorkChoices website. An anonymous source says the system is quite difficult to access and suspects very few ADRAS grants have actually been paid in the last 18 months.
Human Resources magazine attempted to confirm the number, but was told those statistics are not publicly available.