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Hollow consultation is just not sufficient

Whenever an employer is considering a major change, redundancies or a change to rosters there is an enforceable requirement for the employer to hold discussions and consult with employees and the Union or other representatives. This must be at a stage where there is potential to affect or mitigate the decision. Recently we are seeing attempts to pay fleeting or nil regard to this essential step.

Sometimes employers want to steamroll the whole process to avoid the inconvenience of having to pay regard to the views of those affected by the proposed change or of being held to process by the Union.

Consultation is not simply the order in which an employer tells people what is about to happen. Case law is littered with unequivocal statements to that effect.

“The purpose of the discussion is not merely to advise the employees concerned of the decision but of the nature of the change, the expected effects of the change and what may be done to avert or mitigate any adverse effects.”

Commissioner Bissett, in Marafioti v Gonzales FWC5484

“The requirement to discuss proposed changes and consult about the changes has been held to require meaningful consultation and not merely an afterthought. Consultation after an irrevocable decision has been made has been held to not amount to meaningful consultation”.

VP Watson in Maswan v Escada Textilvertrieb FWA4239

If major change or redundancies are being mooted at your workplace contact your Union as soon as possible. We have had instances of employers saying that the Union had been consulted when that in fact isn’t the case.