The Behavioural Insights Team (BIT) was engaged by the Fair Work Commission (FWC) in April 2019 to advise on how behavioural insights could be applied to promote compliance with requirements relating to enterprise agreement and unfair dismissal application processes, and to understand whether there were broader ways that the Commission could apply behavioural insights to its operations.

From a behavioural perspective, users making unfair dismissal applications and enterprise agreement applications may encounter some of the same challenges. Firstly, understanding complex legal processes and compliance requirements can be difficult. For those who do not understand, finding more information or answers to questions can present further challenges.

Secondly, people tend to learn and deepen their understanding through repeating experiences. However, the opportunities for feedback and learning are limited because users are usually first-time users (in unfair dismissal cases) or sporadic users (in enterprise agreement applications). These users are more likely to make mistakes because they don’t have the opportunity to increase their knowledge through repetition.

In unfair dismissal cases, applicants are often anxious, stressed and confused when they enter the unfair dismissal process. These emotions reduce a person’s ability to think clearly and methodically in the way necessary to make a fully compliant application.

In this report, we provide a set of detailed recommendations relating to each of these specific challenges. At a high level, there are also some powerful crosscutting behavioural strategies that can be used to address these and other compliance issues. For example:

1. Simplification of information can reap substantial benefits, particularly in cases where the source information is highly complex or legalistic.
2. Timely reminders and feedback can prevent some mistakes from being repeated, and prevent others altogether. Timely feedback may be particularly beneficial in the case of enterprise agreements, where applicants may return years later when their current agreement expires, but may not recall the details of the errors made in the previous application process.
3. Underlying system design can itself be a way of facilitating compliance, particularly in unfair dismissals. Channelling applicants towards online lodgment services (such as the current Online Lodgment Service (OLS) and future ‘eCase’ system), and away from email and paper-based lodgment channels, can increase compliance.