Consultation obligations under modern awards

Under all modern awards, employers have an obligation to consult with employees when intending to implement significant changes at the workplace.

All modern awards contain consultation provisions, and the Fair Work Act 2009 requires that consultation obligations are included in all enterprise agreements. In addition, the Act requires employers to consult with employees in other situations, whether or not a modern award or enterprise agreement applies.

Every modern award contains a standard consultation clause dealing with the requirement for employers to consult with employees and their representatives where the employer intends to implement significant changes at the workplace. The clause requires consultation where an employer has made a decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, or where an employer proposes to change an employee’s regular roster or ordinary hours of work.

In these cases:

• employers must notify employees and their representatives who may be affected by the proposed changes
• employers must discuss the changes with the affected employees and their representatives, and provide information in writing to them, as soon as practicable after a definite decision has been made about:

i) the nature of the changes

ii) effects the changes are likely to have on employees

iii) measures to prevent or reduce the adverse effects of such changes on employees

• employers must then give prompt consideration to matters raised by the employees and their representatives in relation to the changes.

At a general level, consultation involves giving employees sufficient opportunity to express their views so such views can be taken into account when the employer is planning to introduce workplace change.

While an employer must give consideration to the matters raised by the employees, an employer does not have to obtain the consent of employees or their representatives to implement changes to the business. However, best practice employers recognise that successful workplace change is best realised by cooperative and open change management processes and, as well as obligations under the applicable Award, keeping your employees informed of significant change in their workplace is a smart thing to do.

Employers with employees that are regulated by modern awards, enterprise agreements or other industrial instruments should be aware of, and familiarise themselves with, the consultation procedure set out in their relevant award, enterprise agreement or industrial instrument.

Like to know more about consultation obligations in the award (or awards) that apply to you and your employees? Download the Fair Work Ombudsman best practice guide and give Bare Bones Consulting a call or send us an email. We’ll point you in the right direction to save you time, money, rework and drama around any HR matter in your workplace. Good deal no?