Fair Work Commission: Industrial umpire unveils key changes

Employers will first learn they are being accused of unfair dismissal in a phone call in a Fair Work Commission shake-up.

FWC President Iain Ross announced the move this afternoon. Picture: Gary Ramage

Employers will first learn they are being accused of unfair dismissal in a phone call from a trained staff member at the industrial umpire in a shake-up aimed at assisting small business engage with the Fair Work Commission.

FWC President Iain Ross announced the move this afternoon while launching the industrial umpire’s blueprint setting out some of the key changes to be implemented over the next 12 months, but ruled out a key push to create a new small business division.

The overhaul will include a review to ensure that those appearing before the industrial umpire

are provided with “the information they want, at the time they need it, and in the most useful form”.

“Starting with unfair dismissal information, the review will include our rules, forms, correspondence, formal directions and notices, and the guidance material on our website to ensure they are accessible, accurate and consistent,” Justice Ross said.

The move for a telephone call to business owners is a departure from the standard practice where first contact is generally made when an unfair dismissal application is served on an employer by the umpire.

It is also a response to a report conducted by former small business minister Bruce Billson which made key recommendations for an early “triage” system to weed out unmeritorious unfair dismissal cases and the creation of a new division at the FWC aimed at assisting small business owners.

Justice Ross knocked back these recommendations, noting they required legislative change, but said the FWC would accept the proposal for unfair dismissal applications to be served on employers only following a “reassuring call” from a case manager at the FWC.

“Introducing this initial telephone contact is a step towards extending the successful anti-bullying triage model to unfair dismissal and general protections cases,” he said. “We are committed to providing more and better support for applicants and respondents in the early stages of unfair dismissal and general protections cases”.

Justice Ross said that the “early identification” of applications that were clearly outside the FWC’s jurisdiction was in everyone’s interests. “It means applicants are not fruitlessly pursuing a hopeless claim, employers are not required to respond to such claims, and the Commission’s resources are better utilised,” he said.

However, he warned that existing industrial relations laws did not permit an application to be dismissed “on the basis of an administrative assessment that insufficient detail has been provided, or that the applicant hasn’t identified the remedy they seek”.

“The reality is that in the great majority of cases there is a context as to what happened which needs to be tested in a hearing of some form. In all cases, procedural fairness must be provided. This means that all parties need to be provided an opportunity to be heard”.

Justice Ross said that applying a more active triage to unfair dismissal and general protections cases was also “resource-intensive”. He noted that the FWC received close to 18,000 unfair dismissal and general protections dismissal applications in 2016—17.

The reform plan launched by Justice Ross — titled What’s Next — sets out the changes the umpire will undertake over the next 12 months. Most of the changes are aimed at giving greater support to help self-represented employees and employers navigate Australia’s complex industrial relations landscape.

“The principle at the centre of What’s Next is a simple one: listening to, and meeting, the needs of those who use our services,” Justice Ross said. “We are determined to ensure the services we provide are efficient, effective and responsive to the expectations of the Australian community.”

Justice Ross said the proposal for a new small business division was put forward as a way to provide “right sized” procedures to ensure cases involving small businesses were dealt with by commission members with an “appropriate understanding of the circumstances they face”.

However, he rejected the idea. “In my view, a separate division is not the right way to address these issues,” Justice Ross said. “My view is that the Commission’s processes and procedures should be equally accessible to all participants, whether employee or employer, small or large business, unions or employer organisations, and other representatives”.

Other changes flagged by Justice Ross included a trial of so-called “behavioural insights” to improve attendance at hearings. This could include the use of text messages to remind parties about upcoming conferences.

He also said the FWC was working to improve processing times for applications to approve enterprise agreements and would work to expand access to free legal advice through the Workplace Advice Service.