Alternative Dispute Resolution and Individual Workplace Rights: The Evolving Role of Fair Work Australia

2011 ◽  
Vol 53 (5) ◽  
pp. 718-732 ◽  
Author(s):  
Therese MacDermott ◽  
Joellen Riley
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Access To Justice ◽  
Traditional Role ◽  
Adverse Action ◽  
Recognition And Enforcement ◽  
Workplace Rights ◽  
The Right ◽  
Resolution Processes

This article examines the dispute resolution practices of Fair Work Australia that are evolving to deal with individual workplace rights, as its traditional role shifts away from conciliating and arbitrating collective industrial disputes. The workplace rights enshrined in the ‘general protections’ provisions in Part 3-1 of the Fair Work Act 2009 protect employees and prospective employees from any ‘adverse action’ taken against them because they are exercising a workplace right, or because they fall within one of the protected categories, such as the right to be free from discrimination. A broad range of alternative dispute resolution processes is now available to Fair Work Australia in dealing with such disputes. Alternative dispute resolution processes are seen as a way of avoiding costly and time-consuming litigation, and in some circumstances can improve access to justice for individuals. This article explores whether Fair Work Australia is likely to adopt different dispute resolution approaches from its traditional conciliation practices when managing ‘general protections’ applications, and whether the framework for dealing with these disputes will facilitate fair recognition and enforcement of workplace rights.

scholarly journals DISPUTE RESOLUTION IN THE SOUTH AFRICAN SOCIAL SECURITY SYSTEM: THE NEED FOR MORE APPROPRIATE APPROACHES

Obiter ◽  
2021 ◽  
Vol 33 (1) ◽  
Author(s):  
MAT Nyenti
Keyword(s):  
South Africa ◽  
Social Security ◽  
Dispute Resolution ◽  
South African ◽  
Access To Justice ◽  
Successful Implementation ◽  
Legal Assistance ◽  
The Right ◽  
Resolution Processes ◽  
Social Security Beneficiaries

The right to social security in South Africa is adjudicated and enforced mainly by means of litigation. This article examines litigation as a mechanism for the resolution of social security disputes in South Africa and its impact on both the right to have access to court and to social security. It argues that court-based adjudication may not be the most appropriate means of adjudicating social security claims. This is particularly as South Africa is a country where social security beneficiaries have limited knowledge of the laws and procedures, coupled with a lack of publicly-provided legal assistance/representation for social security cases. Dispute resolution mainly through the courts may contribute to the limitation of their right to seek redress and by implication, their right to have access to social security. Finally, the article proposes the investigation of more appropriate dispute-resolution processes. This is due to the failure of court-based adjudication to ensure access to justice (and to social security); constitutional requirements arising from the protection of the rights of access to justice and to social security; the Constitution’s focus on protecting persons who are particularly vulnerable and desperate; the availability of other (more appropriate) dispute-resolution mechanisms; and the relatively successful implementation of these mechanisms in the resolution of social security disputes in comparative jurisdictions. 

scholarly journals AN OVER VIEW OF ALTERNATE DISPUTE RESOLUTION FROM THE CONTRACTUAL PERSPECTIVE IN EUROPE

2021 ◽  
pp. 19-25
Author(s):  
Asif Khan ◽  
Ali Raza Ansari ◽  
Nishan-E-Hyder Soomro ◽  
Ahmed Arafa
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Time Saving ◽  
The Subject ◽  
The Right ◽  
Alternate Dispute Resolution ◽  
Insight Into ◽  
Shed Light ◽  
The Eu

The Alternative Dispute Resolution ("ADR") is an alternative conflict settlement strategy. It follows the main objective of solving conflicts between parties stunningly through the help of independent professionals and renowned personalities. Today the role of the ADR is more important, and the number of agreements with ADR is increasing. One of the reasons for this development is that the ADR is usually more efficient and time-saving compared to normal justice delivering procedures. The current paper examines the most popular techniques for the solution of alternative disputes within the EU, through mediation. This paper associates ADR development and the European Law Legislative International Trade Conciliation (2002) along with other Laws and ADR services, such as ICC and different Laws related to the services. It then conjointly makes comparisons between the bound “member state” MS Courts to observe problems concerning ADR. Additionally, it recognizes the ADR in the light of the right to valid remedy (European Union Principles). To administer a deep insight into the subject, the paper describes additionally the ADR origin, its features, and relevance. Hence, this paper will shed light on the issues faced by parties in ADR concerning agreements and shall thereby, provide a solution to overcome the same.

Consumer “Access to Justice” in EU in Low-Value Cross-Border Disputes and the Role of Online Dispute Resolution

2017 ◽  
pp. 191-208
Author(s):  
Inmaculada Barral-Viñals
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Access To Justice ◽  
Consumer Contract ◽  
Online Dispute Resolution ◽  
Cross Border ◽  
Consumer Access ◽  
The Eu

This paper examines consumer access to justice in the EU by analysing how Alternative Dispute Resolution (ADR) and Online Dispute Resolution (ODR) can improve this access, especially in the case of low-value cross-border disputes, which constitute the majority of consumer contract complaints. The discussion is based on a widened concept of open justice that not only seeks to provide greater transparency, but also greater participation and collaboration as a means to improve consumer access to justice. The approach deals with the subjective and objective obstacles to accessing justice and the role of participatory justice. Finally, the paper examines the decisions taken by the EU in its attempt to foster both ADRs and ODRs for consumer disputes and determines which obstacles have been eliminated in promoting access to justice.

scholarly journals Reexaminando la noción de Resolución Alternativa de Disputas (ADR) en el contexto del derecho de acceso a la justicia ‘no jurisdiccional’ = Reexamining the notion of Alternative Dispute Resolution (ADR) in the context of the right of access to ‘non-jurisdictional’ justice

2018 ◽  
Vol 10 (2) ◽  
pp. 211
Author(s):  
Julio Cesar Betancourt
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Common Law ◽  
Access To Justice ◽  
The Past ◽  
The Right ◽  
Right Of Access ◽  
Insight Into

Resumen: La noción de “Resolución Alternativa de Disputas”, generalmente conocida como “ADR”, ha recibido una importante acogida por parte de la literatura del common law y lo mismo puede decirse en cuanto sus principales categorías (negociación, mediación y arbitraje). ADR, lato sensu, se refiere a la idea de utilizar toda una gran variedad de mecanismos no jurisdiccionales destinados a pre­venir, manejar, resolver o solucionar conflictos intersubjetivos. De modo que la expresión resolución alternativa de disputas es, en cierta manera, insuficiente para suministrar una visión integral de todas las opciones (o alternativas) disponibles. Este artículo reexamina la noción de ADR y proporciona una novedosa visión del pasado, presente y futuro de esta relativamente nueva disciplina.Palabras clave: ADR, resolución alternativa de disputas, acceso a la justicia.Abstract: The notion of “Alternative Dispute Resolution”, commonly known as “ADR”, has re­ceived considerable attention in common law literature, and the same can be said about the main ADR categories (negotiation, mediation and arbitration). ADR, lato sensu, refers to the idea of utilising a wide variety of non-jurisdictional mechanisms that are intended to prevent, manage, resolve or settle disputes. Thus, the expression alternative dispute resolution is, somewhat, technically insufficient to account for the whole range of options (or alternatives) available. This article re-examines the notion of ADR and provides a novel insight into the past, present and future of this relatively new discipline.Keywords: ADR, alternative dispute resolution, access to justice.

scholarly journals Jurisdictional perspectives on alternative dispute resolution and access to justice: introduction

2020 ◽  
Vol 16 (2) ◽  
pp. 103-107
Author(s):  
Lola Akin Ojelabi ◽  
Mary Anne Noone
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Critical Discussion ◽  
Access To Justice ◽  
Special Issue ◽  
Law System ◽  
The Family ◽  
Equitable Outcomes ◽  
The Relationship

In many parts of the world, the adoption of alternative dispute-resolution (ADR) processes was premised on creating better access to justice for citizens, particularly those with lesser means (Woolf, 1996; Access to Justice Advisory Committee, 1994). ADR's foundational link with access to justice is in relation to not only justice as a process for the resolution of disputes, but also justice in relation to equality of access and equitable outcomes. This Special Issue focuses on the relationship between ADR and access to justice in various contexts and jurisdictions, including Australia, China, England and Wales, Scotland and Singapore, and within the family-law system in Australia. The papers engage in a critical discussion of ADR's contribution to access to justice in the resolution of disputes and, in particular, the extent to which ADR has contributed to improved access to justice. In doing this, the papers highlight the role of access-to-justice discourse in the development and growth of ADR; where available, review evaluations of access to justice in relation to ADR initiatives; and, finally, reflect on the future of ADR and access to justice.

The effect representatives have on their client's perceptions of justice and fair treatment in workplace dispute resolution processes

2013 ◽  
Vol 24 (1) ◽  
pp. 73-89 ◽  
Author(s):  
Kevin P. Farmer ◽  
Jane K. Miller
Keyword(s):  
Organizational Justice ◽  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Third Party ◽  
Content Type ◽  
Research Propositions ◽  
Resolution Processes ◽  
The Impact ◽  
Practical Implications

PurposeThe purpose of this paper is to present a theoretical framework for assessing the effects representatives have on their client's perceptions of justice, outcome and satisfaction, as well as the treatment received by clients from other stakeholders, in workplace dispute resolution processes.Design/methodology/approachResearch propositions are advanced based on constructs and theories drawn from the literature on organizational justice, in particular, as well as social psychology in general.FindingsRepresentatives are hypothesized to have a profound effect on their client's perceptions of voice, participation and satisfaction as well as on the treatment accorded the client by the other side and third‐party neutral. Representation, per se, is heralded as neither a positive nor a negative force in workplace dispute resolution processes.Research limitations/implicationsThe framework of a representative's effects is limited by a focus on individual employees who pursue disputes arising out of the employment relationship against management and, therefore, excludes disputes involving groups as well as non‐employment related disputes.Practical implicationsSuggestions for expanding or contracting the role of representatives in workplace dispute resolution are discussed.Originality/valueAlthough it is ubiquitous in US jurisprudence and is a growing presence in alternative dispute resolution, the representative‐client dyad has been unexplored. The impact representatives have on the client's perceptions of justice, and the effects representatives have on other stakeholders in the process, bear scrutiny.

KEWENANGAN PENGADILAN DALAM PEMBATALAN PUTUSAN ARBITRASE INTERNASIONAL DI INDONESIA

2017 ◽  
Vol 5 (2) ◽  
pp. 26
Author(s):  
Yuanita Permatasari ◽  
Pranoto ,
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
District Court ◽  
International Arbitration ◽  
Legal Research ◽  
Recognition And Enforcement ◽  
Materials Used ◽  
Legal Substances ◽  
Arbitration Award

<p>Abstract<br />This article aims to find out the recognition and enforcement of international arbitration award in Indonesia, as well as the authority of the courts in annulment the international arbitration award in Indonesia. This research is a normative and prescriptive legal research. The type and source of materials used is the source of secondary legal material. The legal substances used in this study are of two kinds, namely primary legal materials and secondary legal materials. The method of collecting legal materials in this study is obtained through assessment of existing libraries, books, law journals, and court awards. Based on the result of the discussion, it can be concluded: Firstly, the international arbitration award can be recognized and enforced if the award is registered and obtain an execution from the Central Jakarta District Court. International arbitration rulings can only be recognized and enforced if they full fil the conditions in Article 66 of Arbitration and Alternative Dispute Resolution law. Second, the international arbitration award is final and binding. However, in reality many international arbitration awards are requested for annulment to the Court in Indonesia.</p><p>Keywords: international arbitration award, annulment of international arbitration award, enforcement of international arbitration award</p><p>Abstrak<br />Artikel ini bertujuan untuk mengetahui pengakuan dan pelaksanaan putusan arbitrase internasional di Indonesia, serta kewenangan pengadilan dalam membatalkan putusan arbitrase internasional di Indonesia. Metode penelitian yang digunakan adalah penelitian hukum normatif bersifat preskriptif. Pendekatan yang digunakan penulis adalah pendekatan kasus. Sumber bahan hukum yang digunakan adalah bahan hukum primer dan bahan hukum sekunder, dengan teknik analisis bahan hukum menggunakan metode silogisme dan interpretasi dengan menggunakan pola berpikir deduktif. Berdasarkan hasil pembahasan dapat disimpulkan: Pertama, agar putusan arbitrase internasional dapat diakui dan dilaksanakan, maka putusan tersebut harus terlebih dahulu didaftarkan dan memperoleh exequatur dari Pengadilan Negeri Jakarta Pusat. Putusan arbitrase internasional hanya dapat diakui dan dilaksanakan apabila memenuhi syarat-syarat yang ditentukan dalam Pasal 66 Undang-Undang Nomor. 30 Tahun 1999 tentang Arbitrase dan Alternatif Penyelesaian Sengketa. Kedua, putusan arbitrase internasional bersifat final and binding. Sehingga, putusan arbitrase internasional tidak dapat diajukan upaya pembatalan putusan arbitrase. Namun, dalam realitanya banyak putusan arbitrase internasional yang dimintakan pembatalannya kepada Pengadilan di Indonesia.</p><p>Kata Kunci: putusan arbitrase internasional, pembatalan putusan arbitrase internasional, pelaksanaan putusan arbitrase internasional</p>

scholarly journals Keeping up with change: no alternative to teaching ADR in clinic. An Australian perspective

2018 ◽  
Vol 25 (1) ◽  
pp. 35
Author(s):  
Jacqueline Weinberg
Keyword(s):  
Dispute Resolution ◽  
Clinical Education ◽  
Alternative Dispute Resolution ◽  
Legal Education ◽  
Law Students ◽  
Access To Justice ◽  
Legal Practice ◽  
Law Schools ◽  
The Cost ◽  
Client Needs

<p>Over the last 30 years alternative dispute resolution (ADR) has become more prominent in Australian legal practice due to the need to reduce the cost of access to justice and to provide more expedient and informal alternatives to litigation. As legal educators, we need to ask: how should we be preparing law students entering practice for these changes? How can we ensure that once they become lawyers, our students will not rely entirely on litigious methods to assist their clients but instead look at alternatives for dispute resolution?</p><p>In this paper, I argue that there is no alternative to teaching ADR in clinic in order to address client needs and to ensure that students engaged in clinical education are prepared for changes in legal practice today. I show that the increasing focus upon ADR in Australian legal practice represents a challenge for law schools, and that legal educators need to ensure they are educating students about ADR.</p><p>I argue that it is important to determine whether ADR is being taught to students undertaking clinical legal education in ways that will enhance their preparation for legal practice. I will show that there is a need to explore: whether ADR is being taught within clinical legal education, the strengths and weaknesses of existing approaches, and how the teaching of ADR within clinics can be improved.</p>

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