Simply put, consulting someone means saying, „I`m thinking about doing this; What do you have to say about that? ” as opposed to „It is done”.2 How this works in practice depends on the circumstances and the specific requirements for legal advice. However, any consultation process has three essential aspects: any consultation carried out by an authority in relation to a proposal for a decision must be carried out at a time when the proposals are at a sufficiently formative stage, have adequate information and have time to allow an adequate and well-founded response, leading to an open examination of the responses. According to the law, employers must conduct a collective consultation in which all of the following conditions apply: Genuine employee consultation (after the steps above) in times of change helps employers avoid disputes and can also provide an employer with useful information to find solutions to problems in the workplace. For further guidance and practical assistance in consulting employees and understanding relevant legal requirements, please contact our Workplace and Employment team. The employee must have time to review the information provided so that they can reflect on their reaction to the change. For example, simply asking the employee without notice is unlikely to have any questions, comments or suggestions during a 15-minute conversation.11 In general, depending on the circumstances, counselling should take place over a few days, or even up to a week or more.12 As a guideline, there should be at least 48 hours between sharing the information with the employee and a follow-up meeting. However, the timelines should be longer if there are many employees/representatives involved or if there is a significant amount of information to consider. It is important to note that each delay should give employees time to seek professional advice if they wish. Employers are required to „consult” with workers before making certain changes to their employment under various industrial and employment-related instruments that govern labour relations.
Failure to consult can lead to litigation and the imposition of civil penalties, damages and even reinstatement after termination of employment. The consultation clause should provide guidance on when this should happen, but in general it should take place as early as possible in the decision-making process, or at least where there is a high level of confidence in the proposed approach.4 „Collective consultation” is when an employer consults a recognised trade union or workers` representatives. Employers with 50 or more employees should consult when proposing a substantial change to a work-based pension plan. You must provide the following to all affected employees: If you are an employer and you are not sure if you need to consult in your situation, you can still give advice to avoid risks. You should seek legal advice if you want to check whether this is required by law. The procedure to be followed during the consultation depends on the decision taken and the relevant circumstances. Below is a general guide that meets most consulting needs, especially if the first step is followed. Employers should tell employees what is planned – inform – and listen – and consider employees` views when deciding what to do – advice.
Your employer may also consult with an employee representative. This could be your union representative or your information and consultation representative, or someone specifically designated for this purpose. Your employer must allow at least 60 days for the consultation. If you have fewer than 50 employees (or if you do not request one), it is up to you to decide if you want to enter into an information and consultation agreement. It is a good practice for your employer to inform you of what is happening in the company and any planned future changes. In some cases, your employer has the legal right to consult you. In R (Plantagenet Alliance Ltd.) v. Secretary of State for Justice, the administrative tribunal summarized when consultation is required: The law states that employers must start this consultation „on time”.
What is considered „timely” depends on the circumstances. However, you must start the consultation to: It is important to comply with all applicable consultation provisions when deciding when to start the consultation. For example, in Freebairn v. Dandiie Pty Ltd.6 An employer was found liable in a wrongful dismissal lawsuit because the Fair Work Board found that, although there had been discussions about possible changes in the workplace, there had been no consultation required by the applicable modern award.7 This is partly because no consultation took place following a „final decision” by the employer. implement changes. , which triggered the obligation under the relevant procurement consultation clause. In these circumstances, the employer could not invoke the „constructive dismissal” exception against the claim.8 Your employer may count part-time workers as full-time employees if it gets by, but it is not required to do so. If you are not sure who qualifies as an „employee”, follow the link below. The decision as to when to be „as soon as possible after a final decision” (wording of the standard award clause) in relation to consultation depends on the circumstances. For example, in Ventyx Pty Ltd v. Murray 9, the Fair Work Commission deemed it appropriate to postpone the consultation to ensure that it is coordinated internationally across the company.
In this case, the Commission also considered that the security of customer data (protected by contractual obligations) should be taken into account when planning and coordinating the consultation. Get legal advice if you`re not sure if you need to tell your employees something. In this type of dismissal, employers must follow the same procedure as in collective consultation in dismissal situations. In certain circumstances, employers need to get legal advice about changes to the employment contract. They should consult comprehensively with all relevant employees and all relevant employee representatives. In some cases, consultation is required before a final decision is made (e.g., in accordance with legal occupational health and safety requirements),5 and it may also be helpful from a change management perspective to involve and increase employee „consent.” In other cases, consultation obligations are „triggered” after a final decision has been made (for example, according to the usual job change regulations in modern rewards). The legal requirements for consultation, first set out in R. v. Brent London Borough Council ex parte Gunning, were approved by the Supreme Court as part of a legal obligation for a local authority to consult in Moseley. In this disclaimer, we address the issue of how to consult, in the sense that in some circumstances it is a legal requirement for employment.
However, real tips can also be an effective tool for employee engagement when it comes to managing change in the workplace. It can also produce better business results through feedback from affected employees. The principles and steps described below also apply to other situations of change. In any case, it is often a good idea (or required by law in certain circumstances, for example as part of the termination process) to put in writing the result of the consultation and the response to comments. This not only records the consultation, but also ensures that all parties are clear about the results. You need to say when the layoffs will take place and why.