Australia: Fair Work Com­mis­sion rules out New Approaches to indi­vid­ual disputes

Last Updated: 16 May 2019
Article by Michael Byrnes

A New Approach

Sec­tion 576(2)(aa) of the Fair Work Act (Act) con­fers upon the Fair Work Com­mis­sion (FWC) the func­tion to pro­mote 'coop­er­a­tive and pro­duc­tive work­place rela­tions and pre­vent­ing dis­putes'.

Pur­suant to this pro­vi­sion, the FWC has imple­ment­ed a juris­dic­tion called 'New Approach­es', which has the aim of assist­ing employ­ers, employ­ees and their rep­re­sen­ta­tives build pro­duc­tive and coop­er­a­tive workplaces.

The New Approach­es page on the FWC web­site states:

'The New Approach­es juris­dic­tion enables the Com­mis­sion to work with par­ties to:

  1. Pro­mote coop­er­a­tive and pro­duc­tive work­place rela­tions through inter­est-based approach­es to bar­gain­ing for enter­prise agreements.
  2. Devel­op new ways of resolv­ing con­flict or dis­putes at the work­place using inter­est-based problem-solving.
  3. Sup­port the intro­duc­tion of change, inno­va­tion and pro­duc­tiv­i­ty improve­ment by new ways of col­lab­o­rat­ing out­side of the bar­gain­ing cycle, and before a dis­pute occurs.'

New Approach­es is most com­mon­ly employed in cir­cum­stances where there are seem­ing­ly intractable dis­putes or an irre­triev­able break­down in rela­tions between an employ­er and its work­force (or the union rep­re­sent­ing that work­force), usu­al­ly in the con­text of enter­prise bargaining.

Appli­ca­tion of New Approach­es to an Individual

The recent deci­sion of David Cantrick-Brooks v The Uni­ver­si­ty of New­cas­tle [2019] FWC 2782 con­sid­ered an appli­ca­tion for the FWC to deal with a New Approach­es appli­ca­tion in respect of an individual.

The Appli­cant, Mr Cantrick-Brooks, who is employed by The Uni­ver­si­ty of New­cas­tle (Uni­ver­si­ty) in the posi­tion of Sec­re­tary and Chief Gov­er­nance Offi­cer, was sub­ject, along with cer­tain oth­er employ­ees of the Uni­ver­si­ty, to alle­ga­tions of mis­con­duct relat­ing to the design, devel­op­ment and com­mer­cial­i­sa­tion of com­put­er software.

The Uni­ver­si­ty estab­lished a Com­mit­tee of Inquiry to inves­ti­gate these allegations.

In an ear­li­er appli­ca­tion, Mr Cantrick-Brooks (along with two oth­er employ­ees of the Uni­ver­si­ty) asked the FWC to deal with this mat­ter as a dis­pute in accor­dance with the dis­pute res­o­lu­tion pro­ce­dure in the applic­a­ble enter­prise agreement.

It was held in the deci­sion deal­ing with that appli­ca­tion that the FWC did not have juris­dic­tion under clause 75 of the applic­a­ble enter­prise agree­ment to deal with the dis­pute inso­far as it relat­ed to Mr Cantrick-Brooks. The FWC had juris­dic­tion con­ferred upon it under the enter­prise agree­ment in respect of the oth­er two employ­ees, but not Mr Cantrick-Brooks.

Mr Cantrick-Brooks also filed a New Approach­es appli­ca­tion in the FWC, which relat­ed to the same dis­pute. In this mat­ter, Deputy Pres­i­dent Saun­ders con­sid­ered whether the FWC should accept, or deal with, that application.

In short, Mr Cantrick-Brooks sub­mit­ted that the New Approach­es juris­dic­tion of the Com­mis­sion is enlivened by the risk the rel­e­vant cir­cum­stances posed to coop­er­a­tive and pro­duc­tive work­place rela­tions between the Uni­ver­si­ty and him. This was said to be sup­port­ed by the fact he remained in the work­place, per­form­ing his work and inter­act­ing with col­leagues who may be required to give evi­dence as part of the inter­nal Uni­ver­si­ty dis­ci­pli­nary process.

The out­come Mr Cantrick-Brooks sought was not a per­ma­nent stay of the Uni­ver­si­ty dis­ci­pli­nary process but rather pro­tec­tions he con­sid­ered to be rea­son­ably nec­es­sary for him ful­ly and fair­ly par­tic­i­pate in the dis­ci­pli­nary process.

Specif­i­cal­ly, Mr Cantrick-Brooks sought:

  1. The right to be rep­re­sent­ed by a per­son of his own choos­ing, with­out that per­son being restrict­ed in his or her advo­ca­cy; and
  2. Pro­tec­tion against involve­ment in the inquiry and dis­ci­pli­nary process by any per­son with an inter­est in the out­come of the mat­ter and who has any bias (whether osten­si­ble or actual).

The Uni­ver­si­ty did not agree to these requests and, as such, Mr Cantrick-Brooks refused to par­tic­i­pate in the Uni­ver­si­ty dis­ci­pli­nary process.

In short, the Uni­ver­si­ty sub­mit­ted that:

  1. An indi­vid­ual can­not make an appli­ca­tion under the New Approach­es juris­dic­tion of the FWC;
  2. The New Approach­es juris­dic­tion can­not be used as a basis for the FWC deal­ing with a dis­pute or exer­cis­ing arbi­tral pow­er in cir­cum­stances where those pow­ers have not been specif­i­cal­ly con­ferred on the FWC (as was deter­mined in the ear­li­er judg­ment relat­ing to the dis­pute appli­ca­tion under the enter­prise agreement);
  3. If the juris­dic­tion can be enlivened, that the FWC should form the view that this dis­pute is not one appro­pri­ate­ly dealt with as a New Approach­es matter.

In con­sid­er­ing the appli­ca­tion, Deputy Pres­i­dent Saun­ders cit­ed a sum­ma­ry of the his­to­ry to the intro­duc­tion of sec­tion 576 (2)(aa) of the Act by Deputy Pres­i­dent Bull in South­ern Ports Author­i­ty T/A South­ern Ports, as follows:

'[7] Fol­low­ing a rec­om­men­da­tion con­tained in the Report of the Fair Work Act Review Pan­el in 2012, an amend­ment to the Act bestowed on the Fair Work Com­mis­sion an addi­tion­al func­tion 'pro­mot­ing coop­er­a­tive and pro­duc­tive work­place rela­tions and pre­vent­ing disputes'.
[8] Fol­low­ing this amend­ment to the Act, the Commission's Pres­i­dent, after con­sul­ta­tion with rel­e­vant stake­hold­ers, endorsed a 'New Approach­es' strat­e­gy to give effect to this new func­tion. New Approach­es shifts the focus of the Commission's role from resolv­ing dis­putes to sup­port­ing par­ties to trans­form their work­place rela­tions to facil­i­tate change col­lab­o­ra­tive­ly, fos­ter inno­va­tion and dri­ve pro­duc­tiv­i­ty improvement.'

Deputy Pres­i­dent Saun­ders also referred to the Explana­to­ry Mem­o­ran­dum to the Fair Work Amend­ment Bill 2013 which states that the pur­pose of sec­tion 576 (2)(aa) is to:

"­ly con­fer on the FWC the func­tion of pro­mot­ing coop­er­a­tive and pro­duc­tive work­place rela­tions and pre­vent­ing disputes."

After con­sid­er­a­tion of the rel­e­vant pro­vi­sions of the Fair Work Act, Deputy Pres­i­dent Saun­ders concluded:

"Nei­ther sec­tion 576 (2)(aa) nor any oth­er pro­vi­sion in the Act con­fers on a per­son a right to make an appli­ca­tion to the Com­mis­sion if they allege that their employ­er or some oth­er per­son is not act­ing in a man­ner which pro­motes coop­er­a­tive and pro­duc­tive work­place rela­tions and pre­vents dis­putes. Had Par­lia­ment intend­ed to con­fer such a right on a per­son, it could rea­son­ably be expect­ed that there would be a pro­vi­sion such as s 394 (1), 365 or 738 in the Act."

Deputy Saun­ders continued:

"Because the Act does not con­fer on a per­son or right to make a New Approach­es appli­ca­tion to the Com­mis­sion, there is no oblig­a­tion on the part of the Com­mis­sion to deal with a par­tic­u­lar New Approach­es appli­ca­tion which has been filed. Whether the Com­mis­sion does so is in the dis­cre­tion of the Commission."

Hav­ing estab­lished that the FWC is not com­pelled to deal with a New Approach­es appli­ca­tion from an indi­vid­ual, and that it is a mat­ter of dis­cre­tion, Deputy Pres­i­dent Saun­ders then con­sid­ered the role of FWC Form F79 in the exer­cise of that dis­cre­tion, specif­i­cal­ly the ques­tion posed in that form as to whether all par­ties to the appli­ca­tion agree to the FWC pro­vid­ing assistance.

Deputy Pres­i­dent Saun­ders continued:

"The answer to that ques­tion is, in my view, very impor­tant. If all rel­e­vant par­ties do not agree to the Com­mis­sion pro­vid­ing assis­tance in accor­dance with its func­tions under sec­tion 576 (2)(aa) of the Act, there would, in my opin­ion, need to be some com­pelling coun­ter­vail­ing rea­son to war­rant exer­cis­ing the dis­cre­tion in favour of deal­ing with the appli­ca­tion. That is because the exer­cise of a func­tion of 'pro­mot­ing coop­er­a­tive and pro­duc­tive work­place rela­tions and pre­vent­ing dis­putes' requires a will­ing­ness on the part of the rel­e­vant par­ties to engage in the process in a con­struc­tive and mean­ing­ful way to have any real­is­tic prospect of pro­duc­ing a suc­cess­ful pro­duc­tive out­come. Prin­ci­pal­ly for that rea­son, the prac­tice of the Com­mis­sion, so far as I am aware, is not to open a New Approach­es file unless all rel­e­vant par­ties agree to the Com­mis­sion pro­vid­ing assistance."

In con­clu­sion, Deputy Pres­i­dent Saun­ders stated:

"Notwith­stand­ing the rea­sons why Mr Cantrick-Brooks sub­mits I should deal with the New Approach­es appli­ca­tion, I have decid­ed not to deal with it. I have exer­cised my dis­cre­tion in this way because the Uni­ver­si­ty does not agree to the Com­mis­sion pro­vid­ing the assis­tance sought by Mr Cantrick-Brooks in his New Approach­es appli­ca­tion and I am sat­is­fied there are no coun­ter­vail­ing con­sid­er­a­tions, whether con­sid­ered in iso­la­tion or col­lec­tive­ly, which jus­ti­fy or war­rant a dif­fer­ent conclusion."

Impli­ca­tions of the decision

The appli­ca­tion was a nov­el one rais­ing some inter­est­ing issues about the scope of the New Approach­es juris­dic­tion of the FWC. It was, and par­don the weak play on words, an attempt­ed new approach to New Approaches.

If the FWC had decid­ed it was oblig­ed to deal with this dis­pute it might have opened the flood­gates to indi­vid­ual appli­ca­tions of a sim­i­lar kind, effec­tive­ly giv­ing all employ­ees cov­ered by the Act a new path to bring indi­vid­ual employ­ment dis­putes before the FWC, even where they are unable to do so pur­suant to an indus­tri­al instru­ment (such as a mod­ern award or enter­prise agreement).

As set out above, the FWC eschewed such an approach and found there was no basis for a con­tention that the FWC is com­pelled to deal with such a dispute.

While the FWC also declined to exer­cise its dis­cre­tion to enter­tain this dis­pute as a New Approach­es mat­ter, it did leave the door ajar to tak­ing that step in oth­er indi­vid­ual dis­pute matters.

There are two sce­nar­ios where that could the­o­ret­i­cal­ly occur. The first is where both employ­ee and employ­er agree to have the dis­pute dealt with by the FWC as New Approach­es mat­ter. Even in that sce­nario, how­ev­er, it will still be a mat­ter for the FWC as to whether it exer­cis­es its dis­cre­tion to do so.

Sec­ond, in the absence of agree­ment from both sides, the FWC may deal with the dis­pute as a New Approach­es mat­ter where there is a 'com­pelling and coun­ter­vail­ing rea­son' to do so. This might be where the indi­vid­ual dis­pute is caus­ing a broad­er malig­nant impact on the work­place rela­tions land­scape of the employ­er, par­tic­u­lar­ly if it could com­pro­mise cur­rent or future enter­prise agree­ment bar­gain­ing or oth­er col­lec­tive mat­ters. (It should be not­ed that, accord­ing to the judg­ment, this is cur­rent­ly counter to the prac­tice of the FWC, which is only to invoke New Approach­es where both sides agree.)

These cir­cum­stances will like­ly be rare. Ulti­mate­ly, the use of New Approach­es remains at the dis­cre­tion of the FWC and the pre­sid­ing mem­ber would need to be con­vinced to adopt the high­ly unortho­dox approach of bring­ing those process­es, intend­ed to address col­lec­tive work­place rela­tions, to bear on an indi­vid­ual dispute.

For further information please contact:

Michael Byrnes, Partner
Phone: +61 2 9233 5544

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions