Commentary New Section 238B
186.Subsections (2) to (5) of new section 238B set out the procedural actions that the employer and the union should take where they have agreed that conciliation or mediation services will be used. The issue of whether the employer and union have taken the actions set out is a matter to which the tribunal is to have particular regard.
187.Subsection (2) sets out the first matter, which is whether the conciliation or mediation meetings have been attended, on behalf of the employer and union, by an “appropriate person”. Under subsection (6), an appropriate person is, in the case of the employer, a person who has the authority to settle the matter on behalf of the employer or a person authorised by such a person to make recommendations to him or her with regard to the settlement of the matter. In the case of the union, an “appropriate person” is a person responsible for handling the matter subject to the conciliation or mediation on behalf of the union.
188.Subsection (3) sets out the second matter, which is whether the employer and union have co-operated with the conciliator or mediator in the making of arrangements to set up meetings.
189.Subsection (4) sets out the third matter, which is whether the employer and union carried out any actions that they agreed with the conciliator or mediator to take. An additional requirement in subsection (7) is whether those actions were carried out in a timely manner.
190.Subsection (5) sets out the fourth matter, which is whether the employer and union answered reasonable questions put to them at meetings with all of the parties present. This formulation recognises that there will be occasions when either party should be entitled to refuse to give a response to a question.
191.Subsections (8) and (9) place limitations on the evidence that the conciliator or mediator may be required to give to the tribunal when it is considering the matters referred to in section 238A(6)(e). These provide, among other things, that confidential information passed by either party to the conciliator or mediator ought not be disclosed to the tribunal without the party’s consent.