Employment and Migration Blog

Consultation with your Employees

Posted by on 31 Mar 2014

When you consider the Fair Work Act amendments which took effect as at 1 January 2014, it seems as if the new bullying provisions received all of the attention. In addition to bullying, there where also a number of other changes which may affect the day to day operations of your business, which are equally important.
 
As at the 1 January 2014, modern awards and enterprise agreements must now include a term requiring employers to consult with employees about a change to the regular roster or ordinary hours of work (this doesn't apply to an employee who already has irregular, sporadic or unpredictable hours of work). 
 
As an employer you are now obligated to provide information to the employees about the proposed change; invite the employee to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities); and to consider any views about the impact of the change that are given by the employees.  If the employee has union representation, the representative is entitled to be involved too.

Seems straightforward enough, right? Well, perhaps not. This obligation could create a hurdle for a business which needs to fill or change a shift quickly. What if the employee is uncooperative, or insists on representation and that representation is not immediately available? While consultation in this context seems to be a fair and transparent approach - the sort of thing most employers would do anyway informally - I wonder if the practical consequences of these obligations have been thought through in detail.  Let's hope that the requirement is treated flexibly where the circumstances are pressing - but if a change is required, don't leave it till the last moment to talk to the employee.
 
While consultation doesn't mean you have to agree to whatever the employee says, nor can it be treated as a formality - you have to consider what they say in good faith.  Whatever you do, don't have a situation where it looks like the decision to implement the change has already been made without any intention to take into account the needs and preferences of the employee.