Consultation clause in modern awards
[2013] FWCFB 8728
•7 NOVEMBER 2013
[2013] FWCFB 8728 |
FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
Schedule 4, item 5—amendments made by the Fair Work Amendment Act 2013
(AM2013/24)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 7 NOVEMBER 2013 |
Consultation about changes to rosters or hours of work.
[1] The Fair Work Amendment Act2013 amends the Fair Work Act 2009 by inserting a new requirement, in s.145A, that all modern awards must include a term dealing with consultation about changes to rosters or hours of work. Section 145A provides as follows:
145A Consultation about changes to rosters or hours of work
(1) Without limiting paragraph 139(1)(j), a modern award must include a term that:
(a) requires the employer to consult employees about a change to their regular roster or ordinary hours of work; and
(b) allows for the representation of those employees for the purposes of that consultation.
(2) The term must require the employer:
(a) to provide information to the employees about the change; and
(b) to 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
(c) to consider any views about the impact of the change that are given by the employees.
[2] Section 145A commences operation on 1 January 2014.
[3] In order to comply with these new legislative obligations, it is proposed that the standard consultation clause in modern awards – Consultation regarding major workplace change – be amended consistent with the requirements set out in s.145A.
[4] A proposed consultation clause is set out at Attachment A. The current clause is set out at Attachment B.
[5] The proposed clause is a draft only. It has been prepared to facilitate the variation of all modern awards consistent with the Commission’s statutory obligations. The draft does not represent the concluded view of the Commission regarding the nature of the variation necessary to give effect to s.145A.
[6] All interested parties will be given an opportunity to make submissions in respect of the proposed variation. Any person or organisation wishing to make a comment in respect of the proposed variation in relation to any modern award should file a short written submission by 12.00 noon on Friday, 6 December 2013. Written submissions are to be filed electronically to [email protected].
[7] The Full Bench will conduct a hearing on Monday, 9 December 2013 at 10.30am in Melbourne prior to issuing any final determinations.
PRESIDENT
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ATTACHMENT A – Proposed consultation clause
X. Consultation
X.1 Consultation regarding major workplace change
(a) Employer to notify
(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.
(ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.
(b) Employer to discuss change
(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause X.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.
(ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause X.1(a).
(iii) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.
X.2 Consultation about changes to rosters or hours of work
(a) Where an employer proposes to change an employee’s regular roster or ordinary hours of work, the employer must consult with the employee or employees affected and their representatives, if any, about the proposed change.
(b) The employer must:
(i) provide to the employee or employees affected and their representatives, if any, all relevant information about the proposed change, provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests;
(ii) invite the employee or employees affected to give their views about the impact of the proposed change (including any impact in relation to their family or caring responsibilities);
(iii) commence the consultation as early as practicable; and
(iv) give prompt consideration to any views about the impact of the proposed change that are given by the employee or employees concerned and/or their representatives.
ATTACHMENT B – Current consultation clause
8. Consultation regarding major workplace change
8.1 Employer to notify
(a) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.
(b) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.
8.2 Employer to discuss change
(a) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.
(b) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1.
(c) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.
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