The recent blockades of Australia's waterfront and ports may
bring flashbacks to the 1998 Waterfront Dispute and have people
questioning where the workplace word of the millennium,
"Collaboration" has gone.
It's true, "Collaboration" may have averted the
recent blockades and industrial disputation. However
"Collaboration" cannot account for the differing goals of
employers, employees and unions, in this situation. Rather what is
required is the other "C" word, "Consultation".
Specifically, it was the lack of consultation in this most recent
waterfront dispute which lead to the Federal Court forcing the
employer to continue employing the workers; and provides a valuable
lesson for all employers seeking to reduce its workforce through
redundancies, or indeed introduce any form of change in the
Consultation is a mandatory provision in every enterprise
agreement made pursuant to the Fair Work Act 2009 (Cth)
Modern Awards also contain specific consultation provisions about
changes in the workplace. Moreover, where the consultation
obligations in an enterprise agreement or Modern Award are complied
with, it will provide employers with a defence to a claim of unfair
dismissal based upon redundancy. Accordingly, the importance of
consultation cannot be overlooked.
In this recent waterfront dispute, the employer had entered into
an enterprise agreement with the relevant union, pursuant to the
Fair Work Act 2009 (Cth). Accordingly, that enterprise
agreement contained specific consultation obligations which
required it to consult with employees affected and the relevant
Union regarding workplace change and potential redundancies.
Moreover, within the enterprise agreement, the employer agreed to
provide relevant information about the changes to the Company in
Specifically in this case, it is reported that approximately 100
employees were sent text messages late at night asking that they
check their emails for a personal letter regarding a redundancy
program notification. Upon checking their emails, employees were
then advised that their positions would be made redundant in 7
days, that there were no redeployment opportunities and that they
wouldn't be required to attend work whilst waiting for their
redundancies to take effect.
It was the text message and emailed letter which the employer
sought to rely upon in convincing the Federal Court that it had
complied with its consultation obligations and that the
redundancies should proceed. The Federal Court took a differing
view of the employers actions, and at least until the substantive
issues can be heard next month, has restrained and prevent the
employer from proceeding with the redundancies. Moreover, the union
is now seeking civil penalties against the employer for failing to
comply the consultation obligations in its enterprise
Aside from the lost revenue suffered when ships were turned away
from Ports, this employer has been forced to continue to employ
approximately 100 employees for at least a further 4 weeks, deal
with the reputational damage inflicted by negative media attention
and interlocutory court proceedings, because it failed to convince
a Court that it engaged in consultation.
Whilst collaboration is an important part of all workplaces,
consultation is fundamentally important, especially when
introducing change. This recent waterfront dispute is a timely
reminder to all employers of the importance of complying with their
consultation obligations when introducing change and in particular
when restructuring and/or making positions redundant. Not only will
compliance with consultation obligations provide employers with a
defence to an unfair dismissal based upon a redundancy, but if
those obligations are in an enterprise agreement, avoid civil
penalties of up to $51,000.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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