Modern award consultation obligations can be easily overlooked. We understand. How important can a little staff chit-chat about workplace changes really be? Well, as we reported last year (here), it’s essential. A failure to consult with modern award covered staff can lead to fines and, in circumstances involving dismissal, an order for the employee’s reinstatement or compensation.
But in good news for employers, a recent Full Bench of the Fair Work Commission found that employers are still entitled to take a practical and operational approach to achieve consultation compliance.
The case involved redundancy. Initially, the FWC found that the employer, Ventyx, failed to meet its obligations under the modern award by not commencing consultation with Mr Murray “as early as practicable” after it made “a definite decision” regarding his redundancy. Recognise those magic words?
By 3 June 2013, Ventyx had apparently made a decision that Mr Murray’s role would likely be made redundant. However, Ventyx didn’t seek to consult with Mr Murray until 1 July. And then, he was only given a day to respond. The termination on account of redundancy was effected on 2 July.
At first instance, the FWC rejected Ventyx’s excuse that, in order to protect the confidentiality of client data, as well as its reputation, consultation with all affected staff had to occur at the same time, on 1 July.
Thankfully, the Full Bench and commonsense intervened. In overturning the original decision, the Full Bench held that the word “practicable” in the modern awards means the relevant discussions must occur with expedition, but subject to reasonable practical considerations. The Full Bench accepted Ventyx’s reasons for its delay as reasonable operational requirements.
The Full Bench also rejected the finding in the original decision that consultation must give the employee the opportunity to change the employer’s mind. The Full Bench held that modern award consultation obligations only require employers to discuss the change to the workplace, including the expected effects on the employee, and then give prompt consideration to any matters raised by the employee.