The Future of Industrial Relations, from the Commission s Perspective Presentation to the Australian Public Transport Industrial Association 28 February 2017 Deputy President Kovacic
Adapting to change Over time the Tribunal has undergone many changes in jurisdiction, name, functions and structure. The Tribunal has endured by successfully adapting to changes in its legislative environment Justice Iain Ross AO, President 2
Outline of Presentation Changing nature of the Commission s work Trends in Commission s caseload Promoting co-operative and productive workplace relations The Commission s New Approaches program Changes in the Commission s service delivery Three pilots to increase efficiency Engagement with small business Initiatives to improve access to justice and productivity (Future Directions) Major cases 3
Changing nature of the Commission s work
5 Workload under the Fair Work Act 2009
6 Case load by matter type 2015-16
7 Case load by matter type 2012-16
Collective v individual matters: 1998 2016 Source: Fair Work Commission, Case Management System; AIRC, Annual reports, various. 8
Trends in enterprise agreements approved 1993 2016 Source: Department of Employment, Workplace Agreements Database, June quarter 2016. 9
Trends over the last five years In the last five years (2011-2016): General protections applications have risen by 51% Unfair dismissal applications have remained relatively constant (an increase of 5%) Applications for approvals of enterprise agreements have decreased by 54% Overall: An increase in individual matters and a decrease in collective matters 10
Promoting co-operative and productive workplace relations: New Approaches
New Approaches In 2013 the Fair Work Act was amended to include a new function for the Commission: Promoting cooperative and productive workplace relations and preventing disputes s.576(2)(aa) To fulfill this function, the Commission developed the New Approaches program where Members: Promote cooperative and productive workplace relations through interest based bargaining for EA s Develop new interest based methods of resolving conflict Facilitate new ways of collaborating outside of the bargaining cycle, and before disputes occur 12
Traditional Bargaining 1. Pre-bargaining creating the atmospherics, complaints about unfulfilled promises from the last round, payback, threats and intimidation 5. Implementation left to management until disputed, often disputed 4. Agreement uneasy compromise, presentation to constituencies, text written after the agreement, vote 2. Preparing to bargain developing logs of claims, setting bottom lines, documenting what didn t happen since last time, building expectations and mobilising 3. Bargaining theatrics (all parties), adversarial and duplicitous offer and counter offer, stand-offs, power tactics, industrial action 13
Interest based bargaining 1. Pre-bargaining information sharing joint situational analysis developing a shared view of reality 5. Implementation joint activities, devolution to front line workforce and management, integration with consultation channel, prevention of disputes 2. Preparing to bargain joint training, joint data gathering, jointly developing a bargaining plan including governance arrangements 4. Agreement- evolving during bargaining, finalisation of language and implementation plan by parties themselves (with expertise as required) 3. Bargaining a series of joint problem solving exercises addressing respective and common interests 14
Case study Sydney Water and ASU Sydney Water and ASU historically operated on a conflict model After a costly and acrimonious bargaining round in 2012, the parties approached the Commission Deputy President Booth facilitated meetings between the employer and union where they engaged in interest based bargaining Outcomes: Improved relationships between ASU and Sydney Water A compromise was reached in the 2012 Enterprise Agreement: employees get overall wage increase. Some employees get lower take home pay (through rearrangement of shifts), but in exchange for greater job security (through reduced outsourcing of services). For Sydney Water: Customer satisfaction improved, productivity increased significantly, and cost reductions promised to the government were able to be delivered. 15
Case study Orora and AMWU Major multi-site manufacturer of cardboard packaging Orora was a loss making business given ultimatum by global board, trade and A$ exposed industry Senior management and AMWU engaged A transformation strategy was jointly developed Consultative and problem solving mechanisms were established Outcome: loss making business to break-even with more work to be done to achieve acceptable profitability 16
Case study Patrick and MUA Historically the relationship between Patrick and the MUA has been adversarial After engaging with the Commission and applying New Approaches techniques: the enterprise bargaining round was concluded in the fastest time ever experienced by the parties, with an outcome acceptable to all and without industrial action the parties engaged in port-by-port discussions about changes to workplace practices that were critical to the ongoing viability of the ports 17
New Approaches New Approaches complements the Commission s existing functions relating to dispute resolution and bargaining by providing a formal process to assist parties to work together effectively. The New Approaches program 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 at the workplace using interest-based problem-solving support the facilitation of change, innovation and productivity improvement through new ways of collaborating outside of the bargaining cycle, and before a dispute occurs. 18
New Approaches Further information regarding New Approaches is available on the Commission s website: https://www.fwc.gov.au/resources/new-approaches 19
Changes in the Commission s service delivery
21 Our change program: Future Directions
Future Directions The four broad goals of Future Directions are to promote: fairness and access to justice efficiency and innovation accountability support of workplace productivity through engagement with industry Since 2012, the Commission has pursued these goals through a number of initiatives 22
Initiatives to promote efficiency Three pilots: The general protections pilot (initial conciliations conducted by trained staff conciliators instead of Members) Agreements approval triage pilot (triaging the approval of enterprise agreements) Permission to appeal pilot (permission to appeal treated as a threshold issue) 23
The general protections pilot Pilot established in 2014, and extended over 2015-2016 to apply to all general protections applications involving dismissal. Under the pilot, conciliators, rather than Members, conduct general protections conferences. The approach has led to efficiency gains: Settlement rate increased (from 60% before pilot to over 70% in recent years) Early results from pilot showed a decrease in the median number of days between the time of application and the holding of a conference (29 days immediately before pilot, compared to 21 days within pilot). Since the pilot was extended, the increasing number of GP applications has meant that timeliness has reduced overall. 24
Agreement approval triage pilot Pilot established late 2014, and extended over 2015-16 to cover 90% of lodgments. Under the pilot, enterprise agreements lodged for approval are assessed by trained staff for compliance with statutory obligations, relating to bargaining process, voting and prescribed content. Outcomes: Increased timeliness Greater rigour and consistency in the approval process More non-compliant applications withdrawn 25
Permission to appeal pilot Pilot established in late 2014, and adopted as standard practice in January 2016 A Full Bench determines whether to grant permission to appeal as a threshold issue, so parties do not have to incur the costs of preparing and filing submissions on the merits of the appeal if permission is refused. The process has led to significant reductions in the time between lodgment and hearing of an appeal: In 2015 16, 94.8% of appeals were listed within 12 weeks compared to 75.7% reported in 2014-15 98.3% were listed within 16 weeks in 2015-16 compared to 92.7% in 2014-15. 26
Initiatives to engage with small business Former Minister for Small Business, the Hon. Bruce Billson, is consulting with small businesses and develop a report on: The way that small business respondents experience the Unfair Dismissal application process; The kind of resources that could help small business avoid and manage disputes The Workplace and Economic Research unit of the Commission will conduct parallel user-design research into the way that small businesses experience the unfair dismissal jurisdiction. 27
Victorian pro bono scheme Established in mid-2014 in Victoria with 14 law firms participating Available to unrepresented employees and to small employers without dedicated HR Provides advice for jurisdictional hearings Law firms provide one hour s advice, by phone or in person, prior to hearing Information about the scheme is placed on the Notice of Listing sent out to parties, and on the Commission s website 28
Workplace Advice Clinics Established in 2016 as a pilot program Qualified lawyers employed by Community Legal Centres provide their services free of charge to unrepresented applicants seeking guidance with unfair dismissal or general protections matters Clinic presently runs in Melbourne and Sydney By the end of March 2017, the pilot program will be expanded into Brisbane All costs associated with providing lawyers for the pilot program is met by the legal services 29
Major cases
Major cases Decision in the Penalty rates matter handed down on 23 February focus now on implementation issues Majority decision in the Family and Domestic violence leave is pending Decision in Part-time and casual employment matter is also pending Plain language draft guidelines and a revised plain language exposure draft of the Pharmacy Industry Award 2010 have been published Four-yearly review continuing 31
Conclusion
Conclusion The Commission is adapting to a number of changes in the industrial relations landscape: The shift from collective to individual based disputes Expanding the assistance which the Commission can provide New Approaches The Commission is using technology to improve access and to enhance efficiency 33
Questions?