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:
- Promote cooperative and productive workplace relations through interest-based approaches to bargaining for enterprise agreements.
- Develop new ways of resolving conflict or disputes at the workplace using interest-based problem-solving.
- 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:
- The right to be represented by a person of his own choosing, without that person being restricted in his or her advocacy; and
- 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:
- An individual cannot make an application under the New Approaches jurisdiction of the FWC;
- 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);
- 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.
