Fair Work Commission

'The triage model has been extremely helpful to me as a new Commissioner,' Commissioner Saunders

Following the successful piloting of an agreement triage process in 2014–15, the triage process was extended to a broader group of agreement approval applications in 2015–16. Under the process, a team of administrative staff analyse the agreements on lodgment to review whether they meet the statutory requirements. This analysis assists Commission Members, who continue to decide whether to approve agreements.

We have high quality information and data that is put together by the Agreements Triage team. It's not a matter for them to make the decision about whether an agreement's approved or not, that's a decision for Commission Members, but it makes our decisions a lot easier if we have ready access to good quality information and good quality data in order to base that decision.

Commissioner Lee

The 2014–15 pilot was in specific industries and states, under the supervision of Deputy President Gostencnik, Deputy President Kovacic and Commissioner Lee. Its aim was to determine if the timeliness, cost effectiveness and consistency of the approvals process could be improved, while at the same time providing Commission Members with more time to focus on more complex matters. In May 2015, the pilot was independently reviewed by Inca Consulting in association with Dr George Argyrous, Senior Lecturer in Evidence-Based Decision-Making, University of NSW. The review reported:

It was noted that the centralised triage approach provided for 'a simpler, more consistent process for assessing agreements.' In particular, it was noted that greater consistency could be achieved through using a small and dedicated team rather than the work being performed in a more dispersed way through Members' chambers.

Importantly, the pilot approach has allowed for the detection of some trends in the lodgment of new enterprise agreements. For example, common errors made by applicants have been detected that delay the approval of agreements (or result in them being withdrawn). Observing these trends and identifying the types of employers or industries where 'mistakes' commonly occur has allowed FWC to embark on some 'early intervention' or 'outreach' work. For example, the Notice of Employee Representational Rights Guide has been developed to hopefully see fewer agreements withdrawn on a technicality.

Commission Members have begun delivering some industry briefings to assist employers and industry groups to prepare better agreements and to avoid common pitfalls.

These initiatives should be considered particularly good outcomes of the pilot that, in time, should result in even more efficient assessment and timely approval of enterprise agreements. It is likely that the education materials will lead to an overall long term improvement in the proportion of s.186 enterprise agreement approvals.

The full review is available on the Commission's website.

Based on the pilot's success, from July to August 2015 the Commission extended the process to cover 60 per cent of all agreement approval applications.

In December 2015, another 24 industries were added to the pilot, with Deputy President Bull replacing Deputy President Kovacic and Commissioners Roe, Gregory and Saunders also joining the group of supervising Members. In February 2016 the Commission rolled the process out to a further group of industries, with 90 per cent of applications dealt with by this new process by the end of the reporting period.

I've found that when the agreement team in Melbourne assists me doing that work, the end result is a more thorough analysis and a quicker analysis than if I get the agreement myself, and do it from scratch myself.

Commissioner Saunders

Other improvements

The centralised triage process has also resulted in opportunities to improve service, identify trends and improve consistency.

For example, two industries account for almost 40 per cent of all agreement approval applications lodged with the Commission – building, metal and civil construction industries and manufacturing and associated industries. As shown in Table 31, in 2015–16 a significantly higher proportion of applications in these two industries were processed through the agreement triage process than in the previous year, resulting in substantial improvements in the time taken from application lodgment to finalisation.

During the year, Deputy President Gostencnik held information sessions in Victoria and Western Australia with parties in the building and construction industry that regularly deal with the Commission. This facilitated open communication on issues including common mistakes in agreement making, recent case law and changes to forms.

Under the direction of Members, the agreements team also made changes to its processes to ensure applicants are reminded of the requirement to serve agreement applications on all identified bargaining representatives. The agreements process assisted the Commission to implement this change to more than 90 per cent of approval applications within a very short time.

In addition to the Notice of Employee Representational Rights Guide published in May 2015, the Commission has also added a step by step guide to making a single enterprise agreement to the materials available on its website. It is a comprehensive guide, covering from the moment an employer considers making an agreement, through to finalising the agreement and having it considered by the Commission.

One of the benefits of having the agreements triage process is that because the group operate as a collective, they see and share information about common issues that are arising. That means that we are in a better position to more quickly go out and educate, through the use of online materials, and we have some very good plain English guides that we have created for parties who are putting together agreements and seeking to have them approved. We can also go directly to some of the frequent users of the Fair Work Commission, the employer associations and unions as an example, and say "these are some of the common errors that are happening from your membership. Let's work on this together to correct them and stop them happening on a repeated basis."

Commissioner Lee

So when I compare those two systems, the direct model that I still get agreements under, and the triage model, the triage model is no doubt better in my view and should be extended into the future.

Commissioner Saunders

For the full video case study, visit the Fair Work Commission's website www.fwc.gov.au.