Redundancy and the consultation obligation

This passage from a Fair Work Commission case explains the nature of the consultation obligations which are required to be satisfied to meet the standard consultation obligations of most modern awards and enterprise agreements.

“It will not be case of genuine redundancy if an employer does not comply with any relevant obligation in a modern award or enterprise agreement to consult about the redundancy. This does not impose an absolute obligation on an employer to consult about the redundancy, but requires the employer to fulfil obligations under an award or agreement if the dismissal is to be considered a genuine redundancy. If an employer was obliged to consult and fails to do so, there cannot be a genuine redundancy.

Consultations should be meaningful and should be engaged in before an irreversible decision to terminate has been made. 9 In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Vodafone Network Pty Ltd, Commissioner Smith found that consultation cannot be perfunctory and must allow an employee a bona fide opportunity to influence the decision maker: 10

“[25] In deciding whether or not to make the orders sought I have considered the importance of consultation. Consultation is not perfunctory advice on what is about to happen. This is common misconception. Consultation is providing the individual, or other relevant persons, with a bona fide opportunity to influence the decision maker. Section 170GA(1)(b) of the Act speaks of measures to avert or minimise terminations or to mitigate the adverse effects of the terminations. Consultation is not joint decision making or even a negative or frustrating barrier to the prerogative of management to make decisions. Consultation allows the decision making process to be informed, particularly as it may effect the employment prospects of individuals. The opportunity to seek to avoid or mitigate the effects of a termination can not be underestimated by those who wield power over those and their families who will the subject of the exercise of that power.”

Trask v Vaughan Constructions Pty Ltd (2021) FWC 1218 delivered 5 March 2021 per Lake DP