Guide 1 of 5 · Staff
Consulting staff about major workplace change
Rests on: the Fair Work Ombudsman’s best practice guide to consultation and cooperation in the workplace.
Awards contain standard consultation clauses, and every enterprise agreement must include a consultation term; these generally apply once an employer has decided on major change, in production, programming, organisation, structure or technology, that is likely to have a significant effect on employees. The clause then asks the employer to tell the people affected, talk it through with them, put the details in writing and consider what they raise, but it does not hand them a veto. For a planned change to regular rosters or ordinary hours, the employer must consult the affected employees before making it.
General information about consultation duties, not advice about any workplace or anyone’s job. The Fair Work Ombudsman is the official place to check, and its guide suggests reading the consultation and dispute resolution clauses in the award or registered agreement that applies.
01 What counts as major change
The Fair Work Ombudsman treats major workplace change as a change to the business that significantly affects employees. Its examples are different working hours, duties, work locations, and redundancies. Read against those examples, a new rostering system that changes hours, a move to another site, or a role whose duties change could fit the description when the effect on employees is significant.
Consultation, in the Ombudsman’s words, means seeking employees’ views and considering them when making decisions. It is not the same as agreement: an employer that consults still keeps the right to make the final decision about how to run the business.
02 Where the duty comes from
The duty to consult about significant change is set out in legislation, awards and enterprise agreements. Which of them applies depends on how the staff are employed, so the table names each source and what it asks.
| Source | What it covers |
|---|---|
| A modern award | A standard consultation clause for significant changes at the workplace and for changes to an employee’s regular roster or ordinary hours of work. Section 145A of the Fair Work Act requires every modern award to include a term about roster and hours changes. |
| An enterprise agreement | Section 205 requires a consultation term covering “a major workplace change that is likely to have a significant effect on the employees” and roster or hours changes, and allowing employees to be represented. An agreement without one has the model consultation term read into it. |
| The Fair Work Act, for 15 or more dismissals | A duty to notify a union, and to give it an opportunity to consult, when an employer decides to dismiss at least 15 employees for economic, technological, structural or similar reasons, if it knew, or should have known, that at least one was a union member; and a duty to notify Centrelink before those dismissals. The employees need not be covered by an award or agreement. |
| State and territory work health and safety laws | Possible further consultation duties about health, safety and welfare in the workplace. |
| Orders and agreements for some contractors | Some contractors, known as regulated workers, may also need to be consulted if a minimum standards order or guideline, a road transport contractual chain order or guideline, or a collective agreement with a consultation term covers them. |
03 The steps a major-change clause sets out
The Ombudsman says consultation clauses generally require consultation once an employer has decided to introduce major change likely to significantly affect employees, and that they also ask the employer to take these steps:
- Tell people. Notify the employees who might be affected, and their representatives.
- Talk early. Discuss the change with the affected employees and any representatives as soon as possible after the decision.
- Put it in writing. Give them written information about the change, how it might affect them, and any steps the employer will take to prevent or reduce harm to employees.
- Listen. Consider promptly the matters that employees and their representatives raise.
The wording of each clause is what binds, so the real steps for a workplace are in its own award or agreement. Those clauses can be found with the Ombudsman’s Find My Award tool or on the Fair Work Commission’s agreements pages.
04 Consent: when it is needed, and when it is not
Two kinds of change are easy to confuse, and they carry different rules.
Major workplace change
The employer must consider what employees raise, but it does not need the consent of employees or their representatives to go ahead.
Rosters and ordinary hours
Section 145A says the award term must require the employer “to provide information to the employees about the change”, to invite their views about its impact “(including any impact in relation to their family or caring responsibilities)”, and to consider those views. If the award’s rostering or hours rules require an employee’s consent, the Ombudsman says that rule applies, and the consultation clause cannot be used to make the change without it.
05 Planning the conversation
The Ombudsman’s guide goes past the legal minimum into practice. It suggests a consultation plan for any significant change, built so that employees understand what is being considered and how it could affect the workforce, know the process and who makes the final decision and how, and then work with management to find and solve the problems the change raises.
Its own worked example is a business bringing in new technology. Set out as strengths, weaknesses, opportunities and threats, the list includes better productivity, early teething problems, lower costs over time, and the possibility that redundancies may be necessary; the guide treats those points as the key messages of the consultation.
Two more of its suggestions suit a hard conversation. When serious or complex matters are discussed with an employee, it calls offering the option of a support person best practice. And once a position is reached, it asks whether the decisions and the reasons for them have been recorded, and whether they have been explained to employees and their representatives.
Consultation also ties into the next guide. Where a role goes, the consultation an award or agreement requires is one of the conditions for the dismissal to count as a genuine redundancy under section 389 of the Fair Work Act.