In the workplace, consultation is a form of conversation. It is a conversation that has a particular focus. It can arise from the mutual recognition of a problem that requires resolution. However, more commonly, it arises from the employer identifying a need for change, developing a solution, and then discussing the change proposal with employees, stakeholders and unions.
The Fair Work Act 2009 requires all employers to include a consultation term in their enterprise agreements. For the AFP, this is clause 70 of the AFP Enterprise Agreement 2017-2020 (the EA).
The key requirement of consultation is that members are involved in the decision-making process as early as possible. This not only means that members are given due notice of any proposed changes but that they are also engaged in conversation about how the change may impact them.
Under clause 70(4) of the EA, consultation is required if the AFP:
- 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
- proposes to introduce a change to the regular roster or ordinary hours of work of employees.
Major change covers a variety of changes in the workplace that would have a significant effect on the employees, including the alteration of members’ regular hours or shifts, relocation of a member/s, and restructuring of business areas, including the composition, operation and size of teams. All of these changes present a major change to members and therefore, business areas have an obligation to actively participate in the consultation process.
As soon as practicable, members who may be impacted by a major change must be notified of the proposal and have the ability to appoint a representative, such as the AFPA, to assist in the consultation process. Throughout the process, the members must be given the opportunity to discuss the change, including perceived impacts and mitigation of impacts, as well as have all relevant factors provided in writing. In return, the AFP must ensure genuine and real consideration is given to any matters the member/s raises in relation to the change.
Consultation is also required for a change to the regular roster or ordinary hours of work. Like a major change, members can be represented and must be given the opportunity to discuss the introduction of the change, its likely effect and mitigating measures. However, while members must be provided with all relevant information this need not be provided in writing.
Consultation cannot be genuine if it appears to have a predetermined outcome, when it is late in the process, when there is little time allowed for open and thoughtful discussion and consideration, and/or the feel of the consultative conversation is defensive, aggressive and adversarial.
Should a member’s business area fail to appropriately consult with members on workplace changes, this is considered a breach of the EA and therefore able to be disputed under Dispute Resolution Procedures (clause 71).
The AFPA Legal Industrial Team encourages all members to engage the AFPA as soon as any workplace changes are raised to ensure that their legal and industrial rights are advocated for, any consultation requirements are met, and productive and meaningful conversation can occur.