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Perspective

When does the consultation obligations trigger?

In March 2020, Deakin University Council met to discuss the impacts of COVID-19 on the University and what measures may need to be introduced including redundancies. Between 19 March 2020 and 25 March 2020, announcements were made explaining that redundancies were a likely possibility due to the challenges of the pandemic. The National Tertiary Education Industry Union (NTEU) made a dispute application under the enterprise bargaining agreement, alleging that the University failed to comply with their consultation obligations as a formal proposal to introduce major workplace changed had arisen in May but the details of this proposal had not been circulated to staff. This was refuted by the University who submitted that a formal proposal for change was not formulated until 15 MWC proposals were developed for each of the 15 University Departments, but they were unfinished and therefore no formal proposals had been made. The dispute concerned when consultation obligations arise.

Commissioner Bissett determined the following:

  • Recognition that there is a need to respond to change “does not mean there is a proposal for change on which it is required to consult”;
  • Adoptions of strategy also do not constitute proposal for change; and
  • It is reasonable for employers to determine strategy and budgetary constraints and put “meat on the bones” of any proposal before it is submitted to employees for consideration; and
  • No requirement to consult until the formal change proposal has been decided and finalised.

Therefore it was determined that there was no breach of general consultation provisions as to timing.

However, Commissioner Bissett found that there was non-compliance with the University’s consultation obligations with respect to the 15 MWC proposals. The University proposed to provide each separate area with their own proposal that only affected their Department. Commissioner Bissett found this separation meant “realistically, no opportunity for meaningful consultation on the overarching aspects of the proposal.” As there were common elements across the proposal and they all arose from one issue and one decision, it was essential that consultation occurred at the university wide level. This is because employees needed to be able to see details of the major workplace change (ie the reduction in 300 occupied positions and 100 vacant positions etc) to be able to meaningfully engage in consultation and provide suggestions of how the adverse effects of the change could be mitigated. Therefore failure to consult with NTEU and staff at a university wide level meant there was a breach of the consultation obligations. Deakin was directed to provide access to all 15 MWC proposals to the NTEU. A frustrating error for Deakin as it means they have to restart their consultation process, resulting in further delays.

Key Takeaways

  • Employees should be provided with as much detailed information as possible to allow them to meaningfully response
  • Employers are not obliged to provide any information to employees until a definite proposal for change has been made
  • Employers are entitled to consider several strategies and formulate a proposal without any input from employees and Unions

National Tertiary Education Industry Union v Deakin University [2020] FWC 4013 (30 July 2020)

Written by Nina Hoang

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Paul Evans

Managing Director, Toro Digital

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Heightened levels of stress around the pandemic is also a relevant factor. An April 2020 study reported 88% of the participants (US employees) faced moderate to extreme stress during the pandemic and nearly 70% faced the most stressful time of their professional career. Participants noted their productivity consequently declined by at least one hour a day for 62% and at least two hours for 32%.

Unsurprisingly, there has been a marked rise in mental health related prescriptions since March 2020.

These risks can be mitigated by undertaking appropriate risk analysis for each employee, ensuring controls are instituted that mitigate those risks, ensuring regular communication between management and employees around individual circumstances, setting clear expectations including around joint goals and objectives, scheduling regular informal team gatherings, and ensuring access to support and resources.

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