Bray, Alicia; Power, Charles --- "The Fair Work Commission's 'New Approach'" [2017] PrecedentAULA 45; (2017) 141 Precedent 27

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THE FAIR WORK COMMISSION’S ‘NEW APPROACH’

By Alicia Bray and Charles Power

The tribunal at the centre of our workplace relations system, the Fair Work Commission (the Commission), has been given a much more limited role in relation to workplace disputes than in the past. The good news is that working days lost to industrial disputes in Australia in current times are a small proportion of the level they were 30 years ago.^[1] The Commission’s back-seat role is consistent with the importance of bargaining at both an enterprise and individual level as the principal determinant of employment terms and conditions. The prospect of harm being inflicted on employers by employees and unions through protected industrial action is all part of the plan under the Fair Work Act 2009 (Cth) (the Act) scheme for enterprise bargaining.^[2]

Nevertheless, the Commission still retains an important role in assisting employers, employees and unions (who want to be assisted) to achieve co-operative and productive workplace relations and to minimise disputes.^[3] The introduction of the Commission’s ‘New Approaches Program’ is a bold initiative that is consistent with this function.^[4]

Through the New Approaches Program, the Commission offers to assist organisations with adversarial and combative workplaces to achieve greater co-operation and collaboration. It seeks to do this by arming workplaces with the skills to resolve conflict before it escalates to formal disputes with the Commission.

THE THEORY BEHIND NEW APPROACHES

The premise underlying the New Approaches Program is that, in the right circumstances, an interest-based approach to bargaining and problem-solving will achieve better results in resolving workplace problems, healing relationships between unions and management, and achieving mutual gains. ^[5] An interest-based approach is an approach that primarily focuses on shared interests, as opposed to individual positions.^[6]

Traditionally, parties have approached negotiations from a positional stance, in which they are ultimately concerned with winning.^[7] Australian workplaces are no exception, and are ‘frequently characterised as adversarial, with management and unions at “war”, and bargaining success (or failure) measured by which party gets the most from the other’.^[8] In preparing for enterprise bargaining, parties will often establish preconceived fixed positions based on past conflicts and practices as a way of meeting their underlying interests. Parties that are unwilling to compromise on fixed positions often fail to consider the interests that underpin them.^[9]

In using a positional approach to bargaining and problem-solving, agreement is often reached after a series of offers and counter offers. In such a situation, parties are unlikely to be truly satisfied with the outcome and their underlying interests are unlikely to be met.

Under an interest-based approach, parties identify the underlying reasons why they have adopted a particular position, rather than focusing on the position itself.^[10] Despite inevitably competing interests, parties that identify their common interests are able to narrow down the issues to be resolved. Parties will jointly develop a wide array of options to balance and best meet each other’s interests. In doing so, there is greater potential for parties to achieve mutual gains, as compared with a rigid positional approach.^[11]

Interest-based problem-solving is certainly not a new concept, and has primarily evolved from the principles identified by Fisher and Uri in ‘Getting to Yes’.^[12] In addition to achieving mutual gains in relation to a particular issue, this approach also has the potential to improve workplace relations generally. As one academic describes it:

‘The working relationship between two sides can be improved by working on issues together, rather than separately. Working together can also increase trust and respect between the two sides, as all issues are openly declared and transparent, leaving no room for hidden agendas and other machinations.’^[13]

HOW DOES THE NEW APPROACHES PROGRAM DRIVE INTEREST-BASED PROBLEM-SOLVING?

Under the New Approaches Program, the Commission provides 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; and

• training and facilitation in collaborative workplace change.^[14]

The services offered by the Commission are not confined to assisting parties with enterprise bargaining. The Commission will also work with parties to improve the way in which they resolve conflict generally in the workplace, as well as facilitating change, innovation and productivity.^[15]

The Commission plays an informal role as guide and mentor in assisting parties to identify underlying issues and shared interests in order to build better relationships. As the Commission’s primary role is to guide the process, the parties will be required to do the heavy lifting. By adopting this hands-off approach, the Commission seeks to arm workplaces with the capacity and skills to resolve conflict themselves, without the Commission’s involvement. However, the Commission will continue to play an ongoing role to the extent required, meaning that parties may still approach the Commission and bounce ideas off them down the track.

The potential benefits of having the Commission involved as an independent third party include (among other things):

• building motivation and enthusiasm in participants, resulting in a desire to participate in collaborative problem-solving;

• developing knowledge and familiarity with the interest-based approach and process;

• developing the skills required to exchange information through effective and open communication;

• generating trust between the parties; and

• developing skills in joint problem-solving and a reduction in defensiveness.^[16]

In addition, the symbolic nature of the Commission as an agency of authority may well gain the commitment and trust of participants and, in turn, ensure the success of an interest-based approach.

THE EXPERIENCES OF THE NEW APPROACHES PROGRAM

The New Approaches Program became part of the Commission’s ongoing functions in April 2016 after a successful pilot phase conducted throughout 2015 and 2016, which was primarily led by Deputy President Anna Booth. As at June 2016, there were 17 active files on foot in the New Approaches Program.^[17]

The Commission has shared a number of success stories of workplaces that have gained great benefit from their involvement in the New Approaches Program, some of which are outlined below.

Sydney Water

Throughout 2006 to 2012, workplace relations at Sydney Water were characterised by conflict and intense adversarialism. Long-held hostilities between managers, employees and unions meant that change was historically heavily resisted.

Countless disputes, some of which related to disciplinary actions and rights under the Sydney Water Enterprise Agreement 2009, arose over this period. Sydney Water frequently attended the Commission to have disputes resolved. The Australian Services Union (ASU) Secretary reflected on this troublesome period:

‘The amount of time that we used to spend in the Commission... [they] may as well have been our full-time Commissioners, because that’s where we lived. We couldn’t resolve anything, everything was a total disaster.’^[18]

In August 2012, management and ASU leaders came to a mutual conclusion that change was necessary, and jointly approached the Commission to take part in the New Approaches Program. Following their acceptance into the New Approaches Program, Deputy President Booth facilitated informal discussions between management and ASU leaders with a focus on common goals and future plans, as opposed to the sources of disagreement between the parties.

With the assistance of Deputy President Booth, Sydney Water formulated plans for the future, as well as new decision-making and consultation processes. Parties now take part in open and honest discussions regarding their interests and come up with joint solutions to best meet these interests.

The importance of the Commission’s position of authority was apparent, with a delegate commenting that Deputy President Booth’s position, as Deputy President, was a crucial factor in gaining respect and commitment from participants. In a similar sense, a manager commented:

‘I think it’s not just her personal qualities but the institution of the Commission as well that is relevant, in terms of having that trust and faith in the person coming to assist you.’^[19]

Although the parties continue to keep in touch and consult with the Commission from time to time, Sydney Water has only attended the Commission twice in nearly five years for formal dispute resolution.

With the Sydney Water Enterprise Agreement 2015 due to expire on 30 June 2017, the parties are currently negotiating a new agreement with the assistance of the Commission. The Commission released a statement on 11 April 2017 advising that the parties had engaged in ‘intensive and productive’ discussions, in which they identified underlying interests and generated a range of joint options to best meet those interests.^[20] Once these options have been assessed, the parties are set to return to the Commission to finalise the new enterprise agreement.

Orora Fibre Packaging

The deteriorating financial performance of packaging manufacturer, Orora Fibre Packaging (Orora), coupled with poor communication and a lack of trust and respect between the workforce and management, was a major incentive for change at Orora.

In 2012, a series of developments brought management and union representatives together in determining that wholesale reform was necessary. One of these developments was an independent investigation into Orora’s productivity, which exposed confronting results of underperformance and an inability to compete in the market.

The Commission identified Orora as a suitable candidate for the New Approaches Program (due to its previous appearances in the Commission) and contacted it to see whether it was interested in participating. In the initial stages, Deputy President Booth and Commission Julius Roe acted as ‘relationship brokers,’ facilitating difficult discussions and assisting in the commencement of the process.

Although the Commission was not involved in the process day-to-day, it had a continuing role behind the scenes. Deputy President Booth described it as:

‘Here, we’re neither the architects nor the builders. We’re the sort of consulting specialist engineers on the side ... a sounding board, there [for] advice when the parties needed it in relation specifically to the application of the Fair Work Act and industrial relations.’^[21]

The involvement of the Commission gave management and union representatives a sense of credibility. Members trusted the process and believed that its involvement in the New Approaches Program was a commitment to do as promised. The General Manager of Orora commented:

‘So if you’re going to tell them “I’m going to do this and I’m going to do that” and it’s done in front of an esteemed group of people ... nobody can go back on their word.’^[22]

With the help of the Commission (and additional independent parties), the workforce and management began having open and frank conversations, and committed to transparent problem-solving. Orora’s productivity improved considerably and the parties continue to work co-operatively. Orora will no doubt experience various challenges in the future, but it has laid the foundations and developed the skills needed to deal with these issues.

On 28 February 2017, the Commission approved a new enterprise agreement successfully negotiated by the parties, the Orora Fibre Packaging National Enterprise Agreement 2016.^[23]

Patrick

After a long history of heated and high-profile disputes, Patrick, a national stevedoring business, made a commitment to transform its previously adversarial workplace into a workplace of trust and mutual respect.

Patrick became involved in the New Approaches Program in 2015. Prior to this, it was involved in various enterprise bargaining disputes with the Commission. In particular, the Commission was involved in a dispute regarding the Patrick Bulk Port Services Newcastle Enterprise Agreement 2015. Once this dispute was resolved, Deputy President Booth approached Patrick’s management and the Maritime Union of Australia to see whether they would be interested in transforming the way that industrial relations were conducted at Patrick. Both parties agreed and thereby became part of the New Approaches Program.

Deputy President Booth, in steering the process, got the parties talking about their genuine concerns and interests, as opposed to focusing on their individual positions. Patrick’s General Manager reflected back on a negotiation, which traditionally would have been unsuccessful using its earlier adversarial approach. In this scenario, the unions wanted all employees to be permanent, whereas management wanted some casual employment. Instead of sticking to these rigid positions, the parties were able to dig down to the heart of the problem and identify the issues that underpinned their positions. In doing so, the union identified its underlying interests, which included ensuring job security for all employees (for purposes such as obtaining loans), and management identified its underlying interests, which included casual employment being necessary for business viability.

Following their involvement in the New Approaches Program, the parties have been able to focus on shared interests in the success of the ports and have saved millions of dollars, previously wasted on legal fees. The General Manager of Patrick describes the New Approaches Program as ‘one of the most fulfilling processes I’ve had in my professional career in terms of an idea being transformed into a reality.’^[24]

HOW CAN CLIENTS ACCESS THE NEW APPROACHES PROGRAM?

Involvement in the New Approaches Program is voluntary. If both the employer and employee parties agree to participate, they may apply to the Commission by using a Form F79. Parties are able to request particular Commission Members in the F79 application form. The Commission will consult with the parties to determine suitability for the New Approaches Program.

Alternatively, the Commission may approach workplaces which they believe would benefit from participation in the New Approaches Program. For instance, the Commission may suggest the New Approaches Program to a workplace if it is continuously appearing in the Commission or if it recognises that there is a problem with workplace relations. The Commission recommended the New Approaches Program to Orora and Patrick, as outlined above.

WHEN IS A NEW APPROACH A GOOD IDEA – AND WHEN MIGHT IT NOT BE?

To participate successfully in the New Approaches Program, commitment is required from both the employer and employees (and any unions involved). The parties must take ownership of the process as the Commission will not hold their hands, and it is ultimately their responsibility to continue with this approach in the future.

Workplaces experiencing the following sorts of issues may benefit from participation in the New Approaches Program:

• workplaces with a significant history of disputes before the Commission;

• workplaces seeking to negotiate new enterprise agreements where there has historically been an adversarial approach to enterprise bargaining;

• workplaces that have been unsuccessful in negotiating an enterprise agreement over a prolonged period of time (for example, due to the parties refusing to budge from their individual positions and claims);

• employers seeking to negotiate new enterprise agreements with significant changes that are likely to be opposed by employees and unions; and

• employers wishing to make changes that are likely to be barred by consultation procedures.

The New Approaches Program will not necessarily be suitable for all parties or situations. A significant change in the way of thinking within an organisation is required in order to achieve real change, which may be difficult where parties are unable to let go of past issues and practices. As demonstrated by the success stories outlined above, the New Approaches Program generally appears to be effective when unions are involved. To achieve real change, it is essential that representatives drive and facilitate change on both sides.

Alicia Bray is a Graduate at Holding Redlich, Melbourne. PHONE [phone] EMAIL [e-mail].

Charles Power is a Partner at Holding Redlich, Melbourne, and a Workplace Relations Accredited Specialist. PHONE [phone] EMAIL [e-mail].

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^[1] According to the latest ABS figures (Industrial Disputes, Australia, Dec 2016), 124,500 days were lost to industrial disputes in 2016, compared with 1,390,700 days lost in 1986.

^[2] See the statements of the full bench in CFMEU v Woodside Burrup Pty Ltd [2010] FWAFB 6021; (2010) 198 IR 360 at [44], a case in which the full bench considered daily losses to Woodside of $3.5 million to be a consequence of protected industrial action which did not warrant the Commission’s intervention.

^[3] A new function to this effect was imposed on the Commission in 2013 by s 576(2)(aa) of the Act.

^[4] Fair Work Commission, New Approaches (19 July 2016) <https://www.fwc.gov.au/resources/new-approaches>.

^[5] Johanna Macneil and Mark Bray, ‘Third-Party Facilitators and Interest-Based Negotiation: An Australian Case Study’ (2001) 55(5) Journal of Industrial Relations 699, 700.

^[6] Ross P Buckley, ‘Adversarial Bargaining: The Neglected Aspect of Negotiation’ (2001) 75 The Australian Law Journal 181, 181.

^[7] See above note 5, 699.

^[8] Ibid.

^[9] Fair Work Commission, Interest-Based Bargaining (31 May 2016) <https://www.fwc.gov.au/resources/new-approaches/interest-based-bargaining>.

^[10] Bobette Wolski, ‘The Role and the Limitations of Fisher and Ury’s Model of Interest-Based Negotiation in Mediation’ (1994) Australian Dispute Resolution Journal 210, 211; see also Roger Fisher and William Ury, Getting to Yes: Negotiating Agreement Without Giving in (Penguin Books, 1991), 12.

^[11] See above note 5.

^[12] See Roger Fisher and William Ury, Getting to Yes: Negotiating Agreement Without Giving in (Penguin Books, 1991), 12.

^[13] Scott Hargrove, ‘Interest-Based Bargaining: Achieving Improve Relationships Through Collaboration’ (2010) 31(4/5) Library Management 229, 235.

^[14] See above note 4.

^[15] Ibid.

^[16] See above note 5, 705-706.

^[17] Fair Work Commission, Annual Report: 2015-2016 (2016) <https://www.fwc.gov.au/documents/documents/annual_reports/ar2016/fwc-annual-report-2015-16.pdf>.

^[18] Mark Bray and Johanna Macneil, Facilitating Productive Workplace Cooperation: A Case Study of Sydney Water and the ASU Water Division (March 2015) Fair Work Commission <https://www.fwc.gov.au/documents/documents/engagement/case-studies/syd-water-case-study-2015.pdf>.

^[19] Ibid.

^[20] Sydney Water Corporation T/A Sydney Water and Australian Municipal, Administrative, Clerical and Services Union, Professionals Australia and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2017] FWC 2052.

^[21] Mark Bray and Johanna Macneil, Aiming for Collaborative Transformation: A Case Study of Orora Fibre Packaging and the AMWU Printing Division (March 2015) Fair Work Commission <https://www.fwc.gov.au/documents/documents/engagement/case-studies/orora-case-study-2015.pdf>.

^[22] Ibid.

^[23] Orora Packaging Australia Pty Ltd T/A Orora Fibre Packaging [2017] FWCA 1134.

^[24] See above note 17.