There are various circumstances in which the national fair work system requires an employer to “consult” with or to “discuss” matters with employees, including the prospect of looming redundancies. But what does this concept of consultation and discussions require in practice? Here is an answer.
“The Applicant submitted that what was missing from this process, as arising from the Respondent’s obligations under the Agreement, was a “discussion” with her.
[31]
The requirement in clause 7 of the Agreement that there be a “discussion” with the affected employee requires the clause to be construed in accordance with ordinary meaning of the words, read as a whole and in context8.
[32]
The word “discussion” appears in the clause in the context of an obligation to consult with employees about the likely effect upon them of major change. In Joshua Wayne Tomvald v Toll Transport Pty Ltd9 Flick J said of the requirement to consult that:
“… the content of any specific requirement to consult is necessarily dictated by the precise terms in which such a requirement is expressed; the nature of the factual or
8 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Manildra Energy Australia Pty Ltd [2025] FWCFB 149 [43]
9 [2017] FCA 1208 [212]
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legal issues the subject of the requirement; and the factual context in which the requirement is exercised, including the particular circumstances of the persons with whom there must be consultation. In some circumstances, consultation may merely involve the identification of an issue upon which input is then sought; in other circumstances, consultation may require the disclosure of information without which no meaningful input to a decision-making process may be possible.”
[33]
Clause 7 of the Agreement requires a “discussion” – something more than simply the identification of an issue upon which input or “feedback” is then sought. In Lynita Adams v Diamond Beach Holdings Pty Ltd T/A Therapy Care10, Matheson C said in relation to the requirement there be a consultation “discussion”, that:
“The term ‘discuss’ is defined in the Macquarie Dictionary as ‘to examine by argument; sift the considerations for and against; debate; talk over’. Discussion therefore goes beyond a one-way communication or notification.”
[34]
This concept of a two-way exchange is important in respect to the obligation to consult, because that obligation, when it exists, is not perfunctory – it needs to be real and give those consulted an opportunity to be heard and to express their views so that they may be taken into account11.
[35]
In this matter, the Respondent fell short of its obligation to “discuss” with the Applicant the introduction of the change, the effect the change was likely to have upon her and the measures it was taking to avert or mitigate the adverse effect of the change. On16 July 2026, when the Applicant was advised of the termination of her employment by reason of the redundancy of her position, no “discussion” had occurred about the effect the decision to discontinue the provision of NDIS services was likely to have on her.
[36]
Fault exists both with respect to the Applicant and the Respondent as to why no discussion occurred. In my view, this fault weighs more heavily on the Respondent, and thus the Applicant’s omissions do not excuse the Respondent’s failure to have a discussion with the Applicant about the likely effect the change was going to have on her, and its resultant failure to comply with its consultation obligations. I have arrived at this conclusion for the following reasons.
[37]
First, I consider that the manner in which the Respondent communicated with the Applicant was confusing. While it asked for “feedback” to be provided by 15 July 2026, it also said a “consultation meeting” would be arranged. It is the case that the Applicant apparently understood she was to reply by 15 July 2026, evidenced by her email sent to Ms Warrington on 13 July 2026. But things because confused when subsequently, Ms Warrington described the meeting as “separate”. The Applicant’s resultant confusion was evident from her email responses. While the Respondent, through Ms Carroll, offered the Applicant an “extension” of time to provide feedback, it is not unreasonable that the Applicant thought her feedback could
10 [205] FWC 2095 [116]
11 Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd T/A Mr Arthur Coal [2021] FWCFB 6059 [108]
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be provided in the meeting she was trying to arrange. This may not have been the Respondent’s intention, but it did not convey its intended process in a clear manner.
[38]
Secondly, the Respondent was quick to draw a line under the “consultation process” when the Applicant had not somehow conveyed to it in the form it apparently desired that she required more time to provide “feedback” by the “deadline” – notwithstanding that the Applicant had already conveyed in writing she did not consider she had been given enough time to respond and also, as evidenced by her subsequent correspondence, had plainly become confused as to the process. The Respondent could have easily provided the Applicant with more time to respond of its own volition, or even received her “feedback” in the meeting that was being arranged to occur on 21 or 22 July 2026.
[39]
Thirdly, I am fortified in this view by the fact that the Respondent had, by operation of its Agreement, an obligation to have a discussion with the Applicant, as part of its consultation obligation. For the reasons set out above, the obligation to consult, in this case, though “discussion”, is an important one, and should not have been so easily dismissed by the Respondent by operation of a deadline it decided to impose with unnecessary rigidity.
Was it reasonable in all the circumstances for the Applicant to be redeployed within the Respondent’s enterprise, or an associated entity of the Respondent?
[40]
It is not necessary for me to express a concluded view about whether it was reasonable in all the circumstances for the Applicant to be redeployed within the Respondent’s enterprise or an associated entity of the Respondent, but I have significant doubts that it was reasonable, in all the circumstances, for the Applicant to be redeployed.
[41]
The Applicant was particularly aggrieved about the proposition conveyed to her that two roles that the Respondent identified as redeployment opportunities were not suitable alternatives for her. To understand her level of her grievance, it is necessary to take into account how for some time, the Applicant has borne what appears to be a deep-seated concern that the Respondent did not properly appreciate the nature of the hubs programme she was involved in running and the demands of her role. Her sense of prejudice in this regard was long standing and profound and had given rise to several detail complaints she made with management about her concerns.
[42]
Ms Carroll gave evidence about the thinking behind the proposition conveyed by the Respondent, that the Applicant was not suitable for the roles available. The two roles were in the aged care team, in the provision of direct care planning and case management. Ms Carroll said that the Applicant’s role “did not involve any care planning or case management”. This was based on an assessment of the Applicant’s role conducted by Ms Carroll. Under cross examination, it was evident that this assessment perhaps overlooked to some degree aspects of the Service Delivery Coordinator (Social Hubs) role that involved more direct care planning and case management than perhaps Ms Carroll was aware existed.
[43]
The underestimation, to some degree, as to the level of direct care planning and case management involved in the Applicant’s role is inflammatory for her, because it underscores
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her long standing resentment as to what she perceives as an underappreciation of her work for the Respondent. But it also caused the Applicant to conflate on the one hand, any underestimation of her work, with on the other hand, the question as to whether it was reasonable in the circumstances for the Applicant to be redeployed into one of the available roles.
[44]
I will not express a concluded view on this question because it is unnecessary to do so, and also because the Respondent was not afforded the benefit of having the Applicant’s input into the question as to whether she might be suitable for one of the roles, because it did not have a discussion with her about it (and the Applicant failed to provide the “feedback” asked of her). However, I do note the Applicant made no submission about, and seems to have given little regard to, the question as to whether even if she has the skills and competency to undertake one of the available roles, they were nevertheless more appropriately filled by others. Ms Carroll said that the two NDIS coordinators who filled the roles “hadn’t worked in aged care, but their current and previous roles in the NDIS space require a very similar approach to client care and planning management”. There is no reason not to accept this evidence. It suggests these other employees were likely a more appropriate fit for the limited alternative roles into which redundant employees were able to be redeployed. Whether it was reasonable “in all the circumstances” requires consideration to be given to whether other employees might have been more appropriate matches for the limited redeployment roles available, meaning it may not have been reasonable in all those circumstances for the Applicant to be redeployed.
Conclusion
[45]
While I consider that the Respondent no longer required the Applicant’s job to be performed by anyone, because of changes in the operational requirements of the employer’s enterprise, I do not consider the Respondent complied with an obligation in its enterprise agreement to consult about the redundancy. In these circumstances, the dismissal of the Applicant’s employment was not a case of genuine redundancy, and the Respondent’s objection to her application is dismissed.
[46]
This matter will be listed for mention so that directions can issue for its further conduct.”
Bruce v Community Based Support Limited [2026] FWC 4076 delivered 23 October 2026 per Redford C