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:

"...express­ly 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
Email: mjb@swaab.com.au

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.

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