Late last year, the AFAP and Airnorth jointly made an application to the Fair Work Commission (FW Commission) in relation to the enterprise agreement that is currently being negotiated for Airnorth pilots. The application is part of a new program developed by the FW Commission called New Approaches.
New Approaches is an idea first that was first introduced in 2013 and arose from an amendment to the Fair Work Act 2009 (Cth) (FW Act), which provided the FW Commission with a new function – to promote cooperative and productive workplace relations and prevent disputes. Its development involved input from the FW Commission, and both employer and employee organisations.
Since 2013, New Approaches has been fully implemented and has been used in many diverse workplaces. It is now confirmed as an established part of the FW Commission’s functions.
New Approaches – a new way to resolve disputes
Under the FW Act (and its predecessors), methods of dispute resolution and the negotiation of enterprise agreements have tended to be based on an adversarial system. In the case of enterprise agreements, the usual pattern is that a union serves a log of claims on the employer, the employer then replies to that log of claims, followed by a series of adversarial meetings in which each party’s claims are whittled down until an agreement is reached which, while not perfect, is sufficient. Needless to say, this often results in neither party being particularly satisfied with the result.
Along the way, the traditional tools of protected industrial action, conferences before the FW Commission and, in extreme cases, arbitration, have the ability to damage the ongoing relationship in the workplace. Not only is an enterprise agreement in place that was the result of giving concessions, the implementation of that enterprise agreement is made so much more difficult due to the negotiation styles used to reach it.
New Approaches introduces a very different approach to the negotiation of enterprise agreements, and dispute resolution generally. It recognises that it is the ongoing relationship between the parties that benefits a workplace.
It involves each party examining the interests of the other parties, rather than just stating its own interest, and jointly creating various solutions to meeting that interest. Once a list of options is generated, the parties can then jointly work through that list to see if there is an option that meets the needs of everyone. This often results in radically different solutions that neither party originally contemplated.
The New Approaches process
In keeping with the co-operative approach fostered by New Approaches, applications are made jointly. All bargaining parties must agree to undergo the process. All applications are then assessed by the FW Commission and, if accepted, are then assigned to a particular member of the FW Commission. In the case of Airnorth, Vice President Catanzariti has been assigned to us, and will oversee bargaining over the next few months.
The first two days in the Airnorth matter involved both Vice President Catanzariti and Deputy President Booth travelling to Darwin to meet with Airnorth, the AFAP and several pilots. That time was used to train the participants in how to bargain under New Approaches. It involved identifying why the parties were using New Approaches and what they hoped to achieve, looking at different styles of negotiation and setting ground rules on how the mechanics of the future negotiation meetings would operate. At the conclusion of those two days, Vice President Catanzariti and the parties locked in a further 15 days (spread over five meetings) that will take place over the next couple of months. Importantly, concrete outcomes were agreed to for the future conduct of the negotiations.
Interaction of New Approaches and traditional methods under the FW Act
Of course, New Approaches cannot force an agreement. It is aimed at facilitating a new method by which a more successful agreement can be reached. It is not an easy task; it is hard work. It can also be a lengthy process. It involves commitment, both ideologically and practically, from employers, employees, the union and the FW Commission. If it does not work in a complete agreement, it may still have the beneficial effect of better styles of communication in the workplace going forward.
New Approaches runs adjacent to the more traditional methods provided for by the FW Act. The parties are not precluded from using protected industrial action, or other access points to the FW Commission.
However, because of the radically different relationship between the parties that is encouraged by New Approaches, resorting to the traditional avenues under the FW Act prematurely would weaken the effectiveness of New Approaches. The use of, say, protected industrial action should only be used once the potential benefits of New Approaches have been exhausted.
How has it been received so far?
Across the wider Australian industrial relations sphere, the general consensus is that the program has so far been successful. This is in no small part thanks to the FW Commission devoting considerable resources to the implementation of New Approaches. Various case studies have been published by the FW Commission, which can be accessed here: https://www.fwc.gov.au/disputes-at-work/new-approaches/new-approaches-case-studies. Of note is the variety of industries that have benefitted from participation in the program.
Benefits of New Approaches
The AFAP is very interested to see how New Approaches might transform the negotiations of an enterprise agreement at Airnorth, and what sort of enterprise agreement might be made. The AFAP is also hopeful that New Approaches will result in a different way of approaching disputes once a new enterprise agreement is made. We are particularly happy that the matter has been assigned to Vice President Catanzariti, one of most senior members of the FW Commission. Devoting considerable resources to New Approaches clearly demonstrates that the FW Commission is committed to fostering a new way for workplace relations.
We urge other pilot groups to consider whether New Approaches might assist their workplaces, either when negotiating enterprise agreements or approaching disputes. If any pilot group is interested in learning more about New Approaches, please contact Andrew Molnar or visit the FW Commission website at www.fwc.gov.au.