FWC pilots changes to general protections, enterprise agreements

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FWC pilots changes to general protections, enterprise agreements

Specially-trained staff at the Fair Work Commission are speeding up the processing of general protections applications and enterprise agreement applications, as part of a pilot program.

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Specially-trained staff at the Fair Work Commission are speeding up the processing of general protections applications and enterprise agreement applications, as part of a pilot program. 

The FWC has been trialling using administrative staff instead of Members for “non-determinant work” in these two areas, in order to free up Members for more complex issues.

An independent review by Inca Consulting (Director: Murray Benton), in association with Dr George Argyrous, Senior Lecturer in Evidence-Based Decision-Making, University of NSW, has shown the pilot programs are showing promising results.

General protections pilot 


The focus of the general protections pilot is the conciliation phase of an application. The pilot program involved using specially trained staff conciliators to conduct conciliation conferences by telephone (similar to the method used in unfair dismissal matters). General protections applications lodged in Western Australia, Queensland and the Australian Capital Territory were included in the pilot, with 444 conferences taking place. 

These matters were more likely to be resolved in a staff-conducted conciliation than by the traditional method, conducted by a FWC Member (73%, compared to 60%), while the median number of days for a conference to be completed dropped from 29 to 21. Ninety per cent of conferences were completed within 43 days of lodgment, compared to 59 per cent for Member-conducted conferences.

Satisfaction rates (assessed by a survey) were also significantly more positive as the review considered “staff conciliators provide a more focused service in which matters are rostered and allocated a sufficient period of time. In contrast, there are many demands on Members’ time as they perform a range of determinative functions and are not always able to allocate sufficient time to general protections matters”.

The review recommends adopting this approach nationally from 1 July 2015. The FWC is inviting comment on the pilot, with feedback to be received by 26 June 2015.

Enterprise agreement applications pilot


In the enterprise agreement approvals pilot program, applications for an enterprise agreement are again allocated to specially-trained staff who assess them for legal compliance; for example bargaining, voting and prescribed content. An assessment is also prepared as to whether the enterprise agreement meets the better off overall test, although FWC Members retain the power to decide whether it should be approved.

Almost a third of all enterprise agreement applications since the beginning of this year have been included in the pilot. 

The review found a high level of confidence in the parties with the process, as well as significantly improved time frames for approval and significantly improved cost-efficiency.

Other improvements identified in the review included increased consistency in approving agreements, as well as an increased ability to identify trends in bargaining. These trends are able to guide the FWC in providing more targeted assistance to parties; for example, it identified a number of agreements having to be withdrawn due to technical non-observance of a pre-lodgment requirement. This led it to redevelop the Notice of Employee Representational Rights Guide to help compliance.

The FWC is also seeking feedback and comment on the pilot.. 

The full reports of these two programs and the interim report into a third program – the Permission to appeal pilot – can be viewed on the FWC website.
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