Consultation requirements for redundancy

The Fair Work Commission rightly insists upon an employer being able to demonstrate strict and meaningful compliance with the consultation provisions of an applicable modern award or enterprise agreement as one of the conditions to meeting the genuine redundancy jurisdictional defence to unfair dismissal.

“Consultation Obligations

[34] The second element contained in s. 389 of the Act requires a positive finding that the employer had complied with any Award or Agreement obligations to consult about the redundancy. In this instance, the relevant provisions are found in clause 33 of the Award, and in particular, clauses 33.1 and 33.2 are relevant to the applicant’s circumstances. Clauses 33.1 and 33.2 of the Award are in the following terms:

“33. Consultation about major workplace change

33.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:

(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and

(b) discuss with affected employees and their representatives (if any):

(i) the introduction of the changes; and

(ii) their likely effect on employees; and

(iii) measures to avoid or reduce the adverse effects of the changes on employees; and

(c) commence discussions as soon as practicable after a definite decision has been made.

33.2 For the purposes of the discussion under clause 33.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:

(a) their nature; and

(b) their expected effect on employees; and

(c) any other matters likely to affect employees.”

[35] In this case, the employer has asserted that the consultation requirements of the Award were satisfied by virtue of discussions that occurred during two telephone conversations that Dr Williams had with the applicant on 31 March and 2 April 2020 respectively. This proposition patently fails the consultation obligations that are clearly evident from the terminology contained in clauses 33.1 and 33.2 of the Award.

[36] Firstly, clause 33.1 (c) of the Award states that the employer must commence discussions as soon practicable after a definite decision has been made. The two telephone calls that were relied upon by the employer as consultation discussions, occurred before the urgent Directors meeting on 7 April 2020, at which time the definite decision was made to make the applicant (and another) redundant. There was simply no discussion at all with the applicant after the decision had been made on 7 April 2020, and before the applicant was sent email notification of the termination of her employment on 10 April 2020.

[37] Secondly, clause 33.2 of the Award states that an employer must give in writing to affected employees all relevant information about the changes, which in this case would involve major workplace change having the significant effect of the termination of employment of inter alia, the applicant. In this case, there was no discussion and there was no information in writing provided to the applicant at any time before she received the email notification of the termination of her employment.

[38] Consequently, the employer did not comply with the obligations under the Award that required it to consult with the applicant about the redundancy. Therefore, the relevant consultation obligations have not been met, and this element of s. 389 of the Act has not been satisfied.”

Bakermans v Hargo Pty Ltd T/A Citywest Gastroenterology (2020) FWC 6238 delivered 20 November 2020 per Cambridge C