Fair Work Commission using ‘nudge theory’ to improve access, promote compliance

| March 11, 2020

The Fair Work Commission has published the outcomes of its first behavioural insights project, led by the Behavioural Insights Team.

The report, promoting compliance through behavioural insights, looks at how behavioural insights techniques could be applied to reduce costs and barriers to access for employers and employees who use the Commission’s services, and improve overall compliance with unfair dismissal and enterprise agreement lodgment requirements.

Behavioural insights – also known as ‘nudge theory’ – draws on cognitive science, psychology and behavioural economics to understand the unconscious biases and motivations that influence how people think, make decisions and behave, with a goal to help people make timely and informed decisions.

The President of the Fair Work Commission, the Hon. Justice Iain Ross AO, said applying behavioural insights to the Commission’s public information and processes could help reduce the anxiety, stress and confusion that parties sometimes experienced when navigating the legal process in unfair dismissal cases.

“We want to make it as easy as possible for employees and employers dealing with these applications to access our services and understand what they need to do.

Providing targeted and accessible information to a party when they need it, and are able to absorb it, can assist their understanding of a process and lead to better decision making, which improves their ability to genuinely access justice.

This usually results in both higher levels of compliance and reduced emotional burden on the parties,” he said.

In relation to enterprise agreements, Justice Ross said that “Failure to comply with the relevant statutory requirements can lead to delays in the determination of applications to approve an enterprise agreement. Behavioural insights techniques can be applied to our public information to make it clearer and easier for agreement-makers to follow the steps required to make and lodge a compliant agreement application.”

Ed Bradon, Head of Policy for Asia-Pacific at the Behavioural Insights Team, said “Changing behaviour is as much about the system as the individual. Simple nudges that take into account how people actually behave can make a big difference. It’s great to see the Commission taking a lead and making it straightforward for their users to get it right first time.”

Recommendations about unfair dismissal applications include improving the online lodgment experience and creating tools to ensure parties clearly understand lodgment timeframes and the implications of exceeding them.

In the enterprise agreement context, the report highlights the value of providing tailored and specific guidance to agreement makers and communicating the benefits of lodging compliant applications earlier in the agreement-making process. These findings will form part of the Commission’s ongoing work in this area, including its extensive engagement with agreement-making parties.

The Commission has begun implementing several initiatives to improve its processes and the information it provides to the public, including:

·        creating a centralised repository of key enterprise agreement resources, guides and tools on the website to minimise ‘friction costs’ in accessing information

·        analysing common issues in enterprise agreement applications to inform engagement with agreement-making parties

·        launching an SMS reminder sent to applicants with unpaid or incomplete applications for unfair dismissal and general protections matters.

Over the coming months, the Commission will continue working to implement other recommendations in the report, including:

·        simplifying the employer form (Form F17) lodged with an enterprise agreement application

·        expanding the step-by-step guide and checklist for making a single-enterprise agreement to make ‘salient’ to the important requirements at each stage of the agreement making process

·        restructuring information on the Commission’s website regarding enterprise agreements by ‘chunking’ information into a series of smaller steps

·        conducting user experience research to inform the structure of unfair dismissal information on the Commission’s website.

The behavioural insights project is an initiative of the Commission’s What’s Next strategy which focuses on improving access and reducing complexity for our users. Over the next 12 months the Commission will continue to expand the application of behavioural insights in its service design and delivery.

The report Promoting compliance through behavioural insights (PDF) is available on the Commission’s website.