What triggers the obligation to consult about major change?

One of the required elements of a genuine redundancy is that an employer must comply with the consultation provisions of any applicable award or enterprise agreement; sec 389 Fair Work Act 2009. Many of the current modern awards contain a term which requires an employer to undertake such consultation where the employer intends to implement “major change”. In Shaun Salisbury v McKay Drilling [2014] FWC 5275, Commissioner Williams concluded (at paragraph [81]) that a decision to make one position redundant in a situation where there were approximately 60 employees employed by the Respondent was not a “major change” and thus a lack consultation did not deny that employer the jurisdictional defence that the dismissal arose from a genuine redundancy.

However in Cepile v Hyne Timber Pty Ltd (2017) FWC 3870 delivered 29 August 2017 Johns C distinguished that case from a situation where one redundancy resulted from “one discrete part of a much broader workplace change program” and in doing so rejected an employer’s attempt to avoid the obligation to consult because only one redundancy resulted from that program. He said “ Given the relative, comparative quality of the word “major”, the significance of that decision (ie the Salisbury case) is less about making one employee redundant not constituting “major change”, than about making one employee redundant out of 60 not being “major change”.