Modern award consultation obligations can be easily
overlooked. We understand. How important can a little staff chit -
chat about workplace changes really be? Well, as we reported last
here ), it's essential. A failure to consult with modern
award covered staff can lead to fines and, in circumstances
involving dismissal, an order for the employee's reinstatement
But in good news for employers, a recent Full Bench of the Fair
Work Commission found that employers are still entitled to take a
practical and operational approach to achieve consultation
The case involved redundancy. Initially, the FWC found that the
employer, Ventyx , failed to meet its obligations under the modern
award by not commencing consultation with Mr Murray "as early
as practicable" after it made "a definite decision"
regarding his redundancy. Recognise those magic words?
By 3 June 2013, Ventyx had apparently made a decision that Mr
Murray's role would likely be made redundant. However, Ventyx
didn't seek to consult with Mr Murray until 1 July. And then,
he was only given a day to respond. The termination on account of
redundancy was effected on 2 July.
At first instance, the FWC rejected Ventyx's excuse that, in
order to protect the confidentiality of client data, as well as its
reputation, consultation with all affected staff had to occur at
the same time, on 1 July.
Thankfully, the Full Bench and commonsense intervened. In
overturning the original decision, the Full Bench held that the
word "practicable" in the modern awards means the
relevant discussions must occur with expedition, but subject to
reasonable practical considerations. The Full Bench accepted
Ventyx's reasons for its delay as reasonable operational
The Full Bench also rejected the finding in the original
decision that consultation must give the employee the opportunity
to change the employer's mind. The Full Bench held that modern
award consultation obligations only require employers to discuss
the change to the workplace, including the expected effects on the
employee, and then give prompt consideration to any matters raised
by the employee.
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