Consultation term

See Fair Work Act 2009 s.205

An enterprise agreement must contain a term that requires the employer to consult with employees about:

• a major workplace change that is likely to have a significant effect on the employees, or
• a change to their regular roster or ordinary hours of work.

The consultation term must require the employer to consult with employees about a major workplace change that is likely to have a significant effect on the employees.

The consultation term must require that for a change to the employees' regular roster or ordinary hours of work, the employer must:

• provide information to the employees about the change
• invite the employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities), and
• consider any views given by the employees about the impact of the change.

Representation

The consultation term must also allow for employees to be represented during consultation about a major workplace change or a change to the employees' regular roster or ordinary hours of work.

If an enterprise agreement does not include a consultation term, or one is included but it does not meet all of the requirements in the Fair Work Act 2009, or if the consultation term is an objectionable emergency management term, the model consultation term set out in the Fair Work Regulations 2009 is taken to be a term of the enterprise agreement.

Related information

• Flexibility and consultation terms – common defects & issues

Model consultation term included

Construction, Forestry, Mining and Energy Union v St John of God Health Care Inc and Ors

Construction, Forestry, Mining and Energy Union v St John of God Health Care Inc and Ors [2014] FWCFB 4011 (Harrison SDP, Blair C, Williams C, 17 June 2014).

An application was made for approval of the St John of God Health Care Maintenance Caregivers Agreement 2013, which included a clause that purported to deal with both consultation and redundancy benefits (relevant clause). However, the relevant clause did not apply to all employees and did not provide employees with the option to be represented during the consultation process.

At first instance, the Fair Work Commission found that the relevant clause did not provide for representation of employees for the purposes of consultation. However, the Commissioner did not state in the decision the requirements of section 205(1) were not met. Instead, the decision stated that the employer conceded that the model consultation term applied to the extent of any inconsistency with the relevant clause.

The CFMEU appealed that decision, submitting that:

• the Commissioner should have made a finding that the requirements of s.205(1) were not met
• if the requirements of s.205(1) were not met, s.205(2) operated such that the model consultation term must apply. That is, the model consultation term cannot apply ‘only to the extent of an inconsistency’, and
• the Commissioner should have included a note in his decision stating that the model consultation term applied.

The Full Bench ultimately overturned the original decision, stating that once it had been decided that the consultation term did not meet the requirements of the legislation, the model term must be deemed to apply and a statement to this effect must be included in the approval decision.

Re Fairbrother Pty Ltd [Facility Management]

Re Fairbrother Pty Ltd [Facility Management] [2014] FWCA 2491 (Lee C, 11 April 2014).

An application was made for approval of a single-enterprise agreement known as the Fairbrother Pty Ltd [Facility Management] Tasmanian Enterprise Agreement 2014. The application was made by Fairbrother Pty Ltd.

The Commission found that the consultation provision in the agreement did not specify that consultation must occur regarding a change to regular rosters, as required by the Fair Work Act. As a result, the model consultation term was taken to be a term of the agreement, and a copy was appended to the agreement.

(regulation 2.09)

1. This term applies if the employer:
   1. has made a definite decision to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the employees; or
   2. proposes to introduce a change to the regular roster or ordinary hours of work of employees.

Major change

2. For a major change referred to in paragraph (1)(a):
   1. the employer must notify the relevant employees of the decision to introduce the major change; and
   2. subclauses (3) to (9) apply.
3. The relevant employees may appoint a representative for the purposes of the procedures in this term.
4. If:
   1. a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and
   2. the employee or employees advise the employer of the identity of the representative;
      the employer must recognise the representative.
5. As soon as practicable after making its decision, the employer must:
   1. discuss with the relevant employees:
      1. the introduction of the change; and
      2. the effect the change is likely to have on the employees; and
      3. measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and
   2. for the purposes of the discussion – provide, in writing, to the relevant employees:
      1. all relevant information about the change including the nature of the change proposed; and
      2. information about the expected effects of the change on the employees; and
      3. any other matters likely to affect the employees.
6. However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.
7. The employer must give prompt and genuine consideration to matters raised about the major change by the relevant employees.
8. If a term in this agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the employer, the requirements set out in paragraph (2)(a) and subclauses (3) and (5) are taken not to apply.
9. In this term, a major change is likely to have a significant effect on employees if it results in:
   1. the termination of the employment of employees; or
   2. major change to the composition, operation or size of the employer’s workforce or to the skills required of employees; or
   3. the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or
   4. the alteration of hours of work; or
   5. the need to retrain employees; or
   6. the need to relocate employees to another workplace; or
   7. the restructuring of jobs.

Change to regular roster or ordinary hours of work

10. For a change referred to in paragraph (1)(b):
    1. the employer must notify the relevant employees of the proposed change; and
    2. subclauses (11) to (15) apply.
11. The relevant employees may appoint a representative for the purposes of the procedures in this term.
12. If:
    1. a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and
    2. the employee or employees advise the employer of the identity of the representative;
       the employer must recognise the representative.
13. As soon as practicable after proposing to introduce the change, the employer must:
    1. discuss with the relevant employees the introduction of the change; and
    2. for the purposes of the discussion – provide to the relevant employees:
       1. all relevant information about the change, including the nature of the change; and
       2. information about what the employer reasonably believes will be the effects of the change on the employees; and
       3. information about any other matters that the employer reasonably believes are likely to affect the employees; and
    3. invite the relevant employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities).
14. However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.
15. The employer must give prompt and genuine consideration to matters raised about the change by the relevant employees.
16. In this term:
    relevant employees means the employees who may be affected by a change referred to in subclause (1).