Employer obligations to consult with employees on maternity or parental leave

Employers have a duty under sec 83 of the Fair Work Act to consult with an employee who is on a period of unpaid maternity or parental leave about a potential decision which might affect the employee and his or her job. What is the nature of that duty?

“The Applicant claims that the Respondent did not consult her within the meaning of s.83 of the Act about the changes to her pre-parental leave Substantive Role (that is, the NCOD role). This submission appears to assume that the Respondent was required to consult with the Applicant prior to informing her on 27 February 2014, that she had been appointed to a new position of Project Director Customised. In Stanley v Service to Youth Council Incorporated [2014] FCA 643, White J made some observations regarding the obligations under s.83 of the Act, as follows:
o The Court did not receive detailed submissions from the parties as to the nature and extent of the obligation imposed by s 83, once it is enlivened. In those circumstances, it is inappropriate to express concluded views.
o However, some features of the obligation imposed by s 83(1) on an employer may be noted. First, the obligation is expressed to arise only when an employer has made a decision of the stipulated kind. This is indicated by the words “makes a decision” in subsection (1)(b) and, to a lesser extent, by the words “the effect of the decision” in the concluding line. In this respect, the obligation established by s 83(1) is similar to that imposed by the standard “Introduction of change” clause in Awards of the former Australian Conciliation and Arbitration Commission (Termination, Change and Redundancy Case (No 2) (1984) 295 CAR 673 at 688) which provided:
 Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer shall notify the employees who may be affected by the proposed changes and their union or unions.
o This means that s 83(1) does not impose an obligation on an employer to consult with the affected employee before the employer makes the relevant decision.
o Secondly, the obligation when it arises is of a stringent kind. The employer must take “all reasonable steps” to give the employee information about the effect of the decision and the opportunity to discuss the effect of the decision. This means that any reasonable step must be taken and an employer will not discharge the obligation by some activity if, in the circumstances, further action could reasonably be expected. The nature and extent of the reasonable steps required will vary according to the nature and circumstances of the case. An employer’s subjective view of what may be adequate will not be decisive: the section establishes an objective criterion.
o The content of an employer’s obligation under s 83 may well be informed by the attitude of the affected employee. Some employees will wish to engage in active discussion and seek detailed information, while others will not. The opportunity to be provided by an employer may be more extensive in the case of the former than in the case of the latter.
o Thirdly, s 83(1) contemplates a form of consultation of a discrete kind. That is the effect of the employer’s decision “on the employee’s pre-parental leave position”. However, given the obvious policy consideration underlying s 83(1), there is no reason to construe that expression narrowly. In particular, it does not seem appropriate to construe s 83(1) as requiring a form of consultation concerning the employee’s position, but not concerning the employee personally. A decision having a significant effect on “the status, pay or location” of an employee’s pre-parental leave position will usually have an intrinsic effect on the employee personally. It is natural to suppose that s 83(1) contemplates discussion about the effect of the decision on the employee personally as well as on the employee’s pre-parental position.
Since this is a decision of a single judge of the Federal Court of Australia and the extracts from the judgment of Justice White are obiter, I am clearly not bound to follow his Honour’s view of the obligations under s.83(1) of the Act. However, in the absence of any contrary decisions by this Court or the Full Court of the Federal Court of Australia, I am satisfied that I should adopt Justice White’s view of the obligations under s.83(1) of the Act. In particular, I concur with his Honour’s observation that these provisions do not require an employer to consult with an affected employee prior to a relevant decision being made. Although the section is headed “Consultation with employee on unpaid parental leave”, the ordinary meaning of the words of the section itself support this construction. Subsection 83(1)(b) contemplates an employer who “makes a decision”; in other words, the decision has already been made. Further, s.83(1) of the Act uses the phrase “give the employee information” and not the word “consult.” In context, therefore, the obligation under s.83(1) of the Act on an employer is to take all reasonable steps to give an employee (on maternity leave) information about decisions it has made, which will have a significant effect on the employee’s pre-parental leave position.
Consequently, so far as the Applicant relies on the proposition that s.83(1) of the Act obliged the Respondent to consult with the Applicant about the change from her position as NCOD to Project Director Customised, prior to that decision being made, this argument is to be rejected.
The next question becomes, whether the Respondent took all reasonable steps to give the Applicant information about its decision to appoint her to the position of Project Director Customised.
Mr Gibson’s evidence is that the proposed restructure of the Respondents organisation was approved on 3 and 25 February 2014. The Applicant was informed about the change to her position by correspondence dated 27 February 2014, signed by Mr Schwarz. This correspondence sets out information about the effect of that decision on her position. The Applicant’s evidence is that when she received this correspondence on 26 March 2014, she telephoned Mr Schwarz and a discussion ensued about the impact of this decision on her position. Furthermore, on 29 April 2014 (when she attended work for the first of her Keeping In Touch Days) she met with Mr Schwarz, who showed her and provided her with the new company restructure (annexure JH4, Exhibit A1). The Applicant’s evidence is that Mr Schwarz also advised her that the position of Project Director Customised was under review, because of the drop in anticipated customised work engaged in by the Respondent. He gave her advice about looking elsewhere. The Applicant did not argue that Mr Schwarz did not discuss the effect of the Respondent’s decision on her personally and it seems to me that this issue may well have been traversed during the meeting she had with him on 29 April 2014.
Consequently, I am satisfied, having regard to the evidence, that the Applicant was given information about the effect of the decision, both on her pre-parental leave position and on herself personally.
I now turn to the question of whether the Respondent engaged in adverse action by reason of the fact that the Applicant was injured in her employment, because she was not afforded her legal rights under s.83(1) of the Act: see s.341(1), Item 1(b) of the Act, and/or her position was altered to her prejudice: see s.341(1), Item 1(c) of the Act. This also rests on her assertion that she was not consulted regarding the change in her position, as the Respondent was obliged to do when she exercised her workplace right to take maternity leave. This argument rests on the Applicant’s claim that the Respondent was obliged to consult her under s.83(1) of the Act, regarding its decision to appoint her as Project Director Customised.
For the reasons set out above (see [176] to [179]), I find that the Respondent did not injure the Applicant in her employment by not affording the Applicant her rights as required under s.83 of the Act. This claim of adverse action pursuant to s.341(1), Item 1(b) of the Act is dismissed.
The Applicant also submits that the Respondent engaged in adverse action within the meaning of s.341(1), Item 1(c) of the Act by altering her position to her prejudice, by reducing the status of her role. For the reasons set out at [169] to [174], I am satisfied the alteration in the Applicant’s status from NCOD to Project Director Customised was an alteration in her position to her prejudice, in that it reduced her status and level of responsibility. However, the Applicant’s pleading is that the adverse action was engaged in by the Respondent by reason of the Respondent “failing to consult with her about changes to her role and reducing the status of her role…”. As I have already found that the Respondent consulted the Applicant within the meaning of s.83(1) of the Act, the inevitable finding must be that the Respondent did not contravene s.340 of the Act as claimed by the Applicant under the alleged fourth adverse action.
Accordingly, I dismiss the Applicant’s fourth claim that the Respondent contravened s.3.”
Heraud v Roy Morgan Research Ltd (2016) FCCA 185 delivered 5 February 2016