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HR Hot Tip – What does “consult” mean?

13 November 2020

Welcome to our series of HR interviews with Lawyer Monika Nosal who answers some of the most common questions asked by HR managers regarding employees’ legal entitlements.

If the obligation to consult arises (under a modern award or an enterprise agreement), typically employers are required to:

  • notify and discuss with the employees affected and their representatives (if any) the introduction of the changes, the effects the changes are likely to have on employees and measures to avert or mitigate those adverse effects;
  • provide employees and their representatives (if any) with all relevant information (excluding confidential information) in writing about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees (including the consequences of rejecting any proposed alternative position if any proposed); and
  • give meaningful consideration to any matters raised by the employees and/or their representatives in relation to the changes.

In the context of redundancy, even if an employer has no obligation to consult, a prudent employer will do so in order to avoid an argument about whether or not the obligation was triggered.

Consultation can also assist an employer to:

  • meet other obligations (for example, to consider redeployment options);
  • make its decision, because employee(s) might have helpful suggestions or propose alternatives not considered by the employer; and
  • avoid or mitigate the negative effects of redundancy on staff morale.

If you would like advice or assistance with the introduction of workplace change and/or implementation of redundancies, please contact a member of our Workplace Relations team.

  • meet other obligations (for example, to consider redeployment options);
  • make its decision, because employee(s) might have helpful suggestions or propose alternatives not considered by the employer; and
  • avoid or mitigate the negative effects of redundancy on staff morale.

If you would like advice or assistance with the introduction of workplace change and/or implementation of redundancies, please contact a member of our Workplace Relations team.

Employers obligations under the National Employment Standards, modern awards, enterprise agreements and contracts can be complex, overlapping, and at times confusing.

Employers need to familiarise themselves with and understand their legal obligations in order to avoid any possible claims by employees (both existing and former) and unsuccessful job applicants, as well as prosecution by the Fair Work Ombudsman. Under the accessorial liability provisions of the Fair Work Act 2009 (Cth), employers and individuals such as directors and HR managers can be personally held accountable for breaching workplace laws in certain circumstances.

A HR Legal Audit conducted by Rigby Cooke can provide the HR function and, in turn, provide employers with comfort in knowing that they are legally compliant, or at least provide advance warning of any potential compliancy issues before they become problematic.

Disclaimer: This publication contains comments of a general nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional advice. No responsibility can be accepted by Rigby Cooke Lawyers or the authors for loss occasioned to any person doing anything as a result of any material in this publication.

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