Teaching old dogs new tricks: The Fair Work Commission New Approaches program - Employee Rights/ Labour Relations

Under the Fair Work Commission (FWC) New Approaches program, employers can now seek assistance from the FWC to develop a 'new approach' to bargaining, implementing change and resolving workplace conflict.

Recently, FWC President Justice Iain Ross AO announced that the New Approaches pilot program, which commenced in 2014, will become a permanent program conducted by the FWC.

This now permanent New Approaches program offers parties an additional avenue to facilitate bargaining, introduce change and resolve workplace conflict and applies an interest-based approach to bargaining and conflict resolution.

Interest-based bargaining and problem solving focuses on identification of the underlying needs and concerns of the parties, rather than the desired outcomes of the parties. Parties using an interest-based approach jointly develop outcomes to advance these interests.

The New Approaches program responds to section 576(2)(aa) of the Fair Work Act 2009 (Cth) (FW Act), introduced in 2013, which empowers the FWC to promote cooperative and productive workplace relations and prevent disputes.

HOW WILL THE NEW APPROACHES PROGRAM WORK?

Under the New Approaches program, the FWC will work with parties to:

promote cooperative and productive workplace relations through interest-based approaches to bargaining for enterprise agreements;
develop new ways of resolving conflict at the workplace using interest-based problem-solving; and
facilitate change and foster innovation through new ways of collaborating outside of the bargaining cycle, and before a dispute occurs.

Participation in the New Approaches program will be subject to the agreement of the parties. The parties must apply for the FWC's assistance using the prescribed form and may request the assistance of a particular Commission Member.¹ Upon receipt of the application, the FWC will assess (in consultation with the parties) whether the matter is appropriate for the program.

Under the New Approaches program, the parties can agree to the FWC providing one or more of the following services:

training in interest-based bargaining;
facilitation of enterprise bargaining;
facilitation of joint processes to implement enterprise agreements;
training in interest-based dispute resolution; or
training and facilitation in collaborative workplace change, including training for consultative committees.

The New Approaches program is designed to complement, not replace, the FWC's existing dispute resolution and enterprise agreement making functions under the FW Act.

Parties will continue to have the option of seeking the FWC's assistance in resolving bargaining disputes (under section 240 of the FW Act), or settling disputes arising under the terms of an award or agreement (under section 739).

WHO COULD BENEFIT FROM PARTICIPATION IN THE NEW APPROACHES PROGRAM?

Whilst the program is open to all employer and employee parties covered by the FW Act, participation in the New Approaches program may be particularly beneficial to parties in the following circumstances:

when parties are engaged in protracted negotiations for an enterprise agreement and are unable to move from their respective bargaining positions;
when parties are preparing to engage in bargaining for an enterprise agreement (and there has been a history of adversarial negotiations and industrial action during previous bargaining rounds);
when parties are preparing to engage in bargaining for an enterprise agreement under which the employer will be seeking to introduce significant structural, operational or organisational changes which are likely to be opposed by employees and their unions;
when parties have a history of adversarial contests before the FWC, where all workplace disputes (even those involving relatively minor matters) are referred to the FWC for resolution rather than being resolved in the workplace;
when an employer is preparing to introduce a significant change in the workplace and is concerned that simply following the consultation processes under its enterprise agreement will hinder the introduction of the changes; and
when parties participate in consultative committees which are unproductive and/or unnecessarily adversarial.

NEW APPROACHES: SOME EARLY SUCCESS STORIES

During an earlier pilot of FWC-facilitated interest-based bargaining, a number of employers and unions obtained successful outcomes. These success stories included the following:

Sydney Water. In this example, Deputy President Booth assisted the employer and union to transform their relationship from being highly confrontational to focusing on their mutual interests.
The parties were able to move from taking protected industrial action during enterprise bargaining negotiations to reaching agreement and implementing various cooperative and consultative workplace processes under the new agreement.

The Deputy President's involvement was critical in building trust, rapport and the basis for a new working relationship between the parties, which saw a reduction in dispute notifications to the FWC.

Endeavour Energy. In the case of Endeavour Energy, the employer and union agreed to Senior Deputy President Hamberger using an interest-based bargaining approach, which helped them shift from an adversarial dynamic to successfully conclude a new agreement.
The interest-based, rather than positional, approach was enshrined in future consultation arrangements, and workplace delegates and line managers now receive training in this technique.

SMIT Marine Australia. In this success story, Commissioner Booth assisted the company and three maritime unions to conclude a new agreement through an extensive process of FWC-facilitated negotiations.
Trust was gradually built between the parties by tackling (and reaching agreement on) easier issues first, then progressing to more difficult or contentious issues.

(More recent successes have been achieved through New Approaches for employers such as Orora Fibre Packaging and the Queensland Catholic Education Commission).²

WHAT ARE THE NEXT STEPS FOR EMPLOYERS?

The New Approaches program will not be a necessary or appropriate avenue for all agreement negotiations and industrial issues.

However, employers should consider whether the program is a mechanism that could be used to avoid lengthy and costly disputes in the workplace and assist in the realisation of their workplace relations strategies.

Footnotes

¹ See: https://www.fwc.gov.au/creating-fair-workplaces/new-approaches

²See the FWC case studies at: https://www.fwc.gov.au/creating-fair-workplaces/new-approaches/new-approaches-case-studies

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