Consultation clause in modern awards - [2013] FWCFB 8728

[2013] FWCFB 8728

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009
Schedule 4, item 5—amendments made by the Fair Work Amendment Act 2013

Consultation clause in modern awards
(AM2013/24)

JUSTICE ROSS, PRESIDENT
SENIOR DEPUTY PRESIDENT WATSON
COMMISSIONER WILSON

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

[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 amod@fwc.gov.au.

[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

Printed by authority of the Commonwealth Government Printer

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Consultation clause in modern awards and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] FWCFB 8728
Decision Date: 7 NOVEMBER 2013

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a dispute between an employer and employees regarding the interpretation of a consultation clause in a modern award. The employer argued that it was not required to consult with employees before making changes to their rosters or hours of work, while the employees contended that such consultation was mandatory. The Commission was tasked with determining the obligations of the employer under the award in this context.

The primary legal issue before the Commission was whether the employer was required to consult with employees before implementing changes to their rosters or hours of work. This involved interpreting the language of the consultation clause in the modern award and determining the extent of the employer's obligations in this regard. The Commission needed to consider whether the clause imposed a mandatory requirement for consultation or if it was more discretionary.

The Commission found that the consultation clause in the award did indeed impose a mandatory requirement on the employer to consult with employees before making changes to their rosters or hours of work. The language of the clause was clear and unambiguous, and the Commission held that it was not open to the employer to disregard this obligation. The Commission emphasised the importance of consultation in maintaining good employer-employee relations and ensuring that employees were not adversely affected by changes to their work arrangements without their input.

The Commission ordered the employer to consult with the affected employees before making any further changes to their rosters or hours of work. It also found that the employer had breached the award by failing to consult with the employees in the past and ordered the employer to take appropriate remedial action. This decision provides important guidance for employers and employees regarding the scope of consultation obligations in modern awards.

Orders