What consultation is required for genuine redundancy?

What consultation is required for genuine redundancy?

“The obligation on an employer to consult about redundancy only arises when a modern award or enterprise agreement applies to an employee and that modern award or enterprise agreement contains requirements (which they often do) to consult about redundancy. In the present matter the Respondent was obliged to consult under clause 28 of the BFI Award.

If an employer was obliged to consult and fails to do so, there cannot be a genuine redundancy. 6

It is well established that:

  1. a) Consultations should be meaningful and should be engaged in before an irreversible decision to terminate has been made. 7
  2. b) “Consultation is not perfunctory advice on what is about to happen … [c]onsultation is providing the individual, or other relevant persons, with a bona fide opportunity to influence the decision maker.” 8
  3. c) “The purpose of a consultation clause is to facilitate change where that is necessary, but to do that in a humane way which also takes into account and derives benefit from an interchange between worker and manager.” 9

The following was observed by Sachs LJ in Sinfield v London Transport Executive: 10

“Consultations can be of very real value in enabling points of view to be put forward which can be met by modifications of a scheme and sometimes even by its withdrawal. Any right to be consulted is something that is indeed valuable and should be implemented by giving those who have the right an opportunity to be heard at the formative stage of proposals – before the mind of the executive becomes unduly fixed.” 11

Fayad v NobleOak Aspire Pty Ltd (2020) FWC 6475 delivered 10 December 2020 per Johns C