Award consultation requirements

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When making significant changes that affect an employee’s employment, members should always consult with employees according to the clauses outlined in their applicable award or enterprise/ collective agreement.

What is consultation in the workplace?

Consultation is integral to any workplace and can present a legal requirement for members. Consultation effectively means asking for, and considering an employees’ views, when making decisions.

It is important to engage in consultation during any major workplace change and any change that will affect employees in a significant manner. For example, a change in working hours, duties, locations or redundancies can carry consultation requirements under the applicable award or industrial instrument. Employers who consult with their employees generally tend to experience far better outcomes within their business. The Award

Awards, such as the General Retail Industry Award (the GRIA) and Timber Industry Award, contain standard consultation clauses that require employers to consult with employees and their representatives if they intend to: • change an employee’s regular roster or ordinary hours of work, or • make significant changes at the workplace. Major workplace change

If an employer decides to make major changes in the production, program, organisation, structure or technology that is likely to have a significant effect on employees, members must: • give notice of the changes to all employees that may be affected

• discuss with such employees the introduction of the changes, their likely effect on employees and measures to avoid or reduce the adverse effects of such changes.

These discussions should take place as soon as practicable after the decision has been made.

When discussing changes with employees, put in writing the nature of the changes, their expected effect and any other matters likely to affect the employees. What constitutes “significant effects” from changes

• Termination of employment • Major changes in the composition, operation, or size of the workforce or in the skills required • Loss of or reduction in job or promotion opportunities • Loss of or reduction in job tenure • Alteration of hours of work • Need for employees to be retrained or transferred to other work locations • Job restructuring. Changes to rosters or hours of work

If an employer proposes to change the regular roster hours an employee works, consultation must occur. However, if the employee works irregular and sporadic hours then generally no consultation is necessary. How to consult?

Step 1: Provide written notice of change Proposed changes in the workplace: • Members should consult affected employees with information about the proposed changes, detailing the changes and when they will occur.

This should be in writing, via email or letter. • Members should invite employees’ views about the potential impact of the proposed changed for them, for example an impact on their ability to care for family members or fulfill study commitments. This should be explained in the letter and an employee should be invited to attend a consultation meeting (along with a designated support person if present) to share their opinion on the impact of the change.

It is advisable to provide reasonable notice of the consultation meeting (24 to 48 hours) and ensure the meeting is conducted during reasonable hours, such as during an existing shift.

This method of consultation will demonstrate to the employee that you wish to engage in open and transparent dialogue. This will help nurture a respectful relationship with the affected employee and ensure an adequate outcome.

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Step 2: Consult with employees about changes Attend a meeting with the employee where the member: • provides the employee with information about the proposed changes to their roster, including the reasons for change • invites the employee and their representative (if any) to give their views about the impact of the changes to their roster (including any impact on their family or caring responsibilities); and • considers the views about the impact of the change. Step 3: Confirm changes to the regular roster Changes to a part-time employee’s guaranteed hours of work can only take place with the employee’s mutual agreement.

If the employee’s status of employment is to be changed (e.g. from full-time or casual to part-time, from part-time to casual or full-time), prior express written consent is required.

Once the employee and employer agree to the changes to their status of employment and/or regular hours of work, parties should enter into an agreement (such as written variation or new contract of employment) to confirm the changes to the employee’s employment status, guaranteed hours or their regular roster.

Step 4: Notice requirements even if mutually agreed to changes Regardless of members having agreed with their employees on a change in the workplace or the roster, the GRIA requires the employer to provide a period of notice to employees of the new changes. This provides a record of the open dialogue shared with the employees should they change their mind or wish to alter the terms of the change. Before members decide, it is important to consider the impact on employees. The amount of notice depends on whether the employee is employed full-time, part-time or casually.

Full-time or casual employee: The employer may make permanent roster changes at any time by giving the employee at least 7 days written notice of the change. If the employee disagrees with the change, the period of written notice of the change required to be given is extended to at least 14 days in total. The extra notice is to allow for discussions between the employer and employee to resolve the disagreement.

The employer may make a change to a part-time employee’s roster by giving the employee 7 days, or in an emergency 48 hours, written notice of the change.

It is unlawful for an employer to change an employee’s roster with the intention of avoiding paying the employee certain entitlements.

If an employee disagrees with a roster change, members are encouraged to negotiate in good faith to genuinely reach an agreement with the employee about the roster change. If a resolution is unable to be reached and appropriate steps to resolve the matter have been taken, the employee or member has the right to refer the dispute to the Fair Work Commission. Consultation in action

Consider a scenario where consultation would be necessary. An employer needs to alter the staff weekly roster to accommodate a change in staff availability that will affect the employment of a casual staff employee who has been employed for 3 years. The casual staff employee regularly and systemically works Mondays, Fridays and Sundays, but the employer needs to change the Friday shift to Wednesday to fill in a required position on the floor for that day.

Firstly, the employer should approach the employee and advise them of the nature of the change and when it will commence. The employer should advise the employee when a team member leaves to move overseas at the end of the month, the employer hopes they can replace the absent shift on a Wednesday night and cease working on the Friday.

The employer should invite the employee to outline how such a change would affect them and their commitments. This correspondence can be in writing. The employer should consider the employee’s views before deciding to roster the employee accordingly. Approaching the employee and inviting their opinion the employer can create an open environment and adequately adhere to the consultation clauses outlined in the Award. The employer should confirm the changes to the regular roster and issue the employee with a notice of the change.

For more information contact the Employment Law team on 1800 888 479

regarding changes to hours of work or rosters, or other significant workplace changes.