Does the Workplace Bargaining Policy 2018 (the Policy) remove consultation from enterprise agreements?
What type of consultation arrangements does the Policy allow?
Consultation about working hours and major change
The Policy requires enterprise agreements to include the model consultation term from the Fair Work Regulations 2009. The model term requires agencies to:
- consult with employees before they can change rosters or hours of work;
- consult with employees about major workplace changes after a decision has been made.
Employees have a right to nominate a representative to represent them in the consultation process.
Consultation before a decision is made
In some circumstances, it is reasonable and appropriate for consultation to occur before a final management decision is made.
For example, the Policy allows agencies to include a clause in an agreement which requires management to consult employees about proposed changes to HR policies and procedures before a final decision is made.
It may be acceptable for other clauses about specific types of consultation to be included in agreements where this is not considered to be unreasonably restrictive on the effective and efficient operations of the agency.
Staff consultative committees
An agency’s staff consultative forum can be referred to in an agreement. Such consultative forums generally comprise management and elected employee representatives. Forums like these usually focus on consultation about the operation of the enterprise agreement, related policies and procedures, and general workplace relations matters.
These forums generally operate in the context of terms of reference. Terms of reference and detailed procedures about the operation of a forum should not be included in the enterprise agreement. Terms of reference documents and other workplace relations arrangements in agencies are required to be consistent with the Policy. Supporting documents should guide the application of the enterprise agreement without changing, or otherwise affecting, the entitlements and conditions contained within the agreement.
What type of consultation clauses cannot be included in an enterprise agreement?
Clauses cannot be included in agreements that impose a one-size-fits-all approach to consultation. Each situation can be different, requiring a different approach depending on the circumstances.
Some existing consultation clauses are so broad that they require a manager to consult in all situations before making a decision. This is impractical where managers need to make decisions in a timely manner about straightforward issues, or very sensitive issues with a personal dimension.
Another example is around applications for leave. The broadest consultation clause would require a manager to consult with everyone in the team, and potentially a union if requested, before they could make a decision to approve someone’s leave request. This is clearly not sensible or appropriate.
Does the Policy remove employees’ rights to consultation on changes to their hours of work?
No. The model term requires the agency to consult about a proposed change to ordinary hours of work or regular rosters before a decision is made.
Such consultation gives employees the right to provide relevant information about their individual circumstances. The agency must genuinely consider this information before they make a final decision.
Employees have a right to be represented in this consultation process.
Is consultation limited to what is set out in the enterprise agreement?
No. Consultation with employees is important and good management practice.
The enterprise agreement provides as a base, the minimum consultation that employees are guaranteed. This does not prevent an agency from consulting further and widely where appropriate.
Nothing in the Policy prevents an agency from consulting with employees about a range of workplace issues outside of the enterprise agreement.