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Snapshot

  • Employers have a legal obligation to consult employees when making significant workplace changes.
  • Modern awards and enterprise agreements contain standard provisions dealing with the requirement for employers to consult with employees and their representatives when implementing significant changes.
  • There is a need for clear parameters and guidance on how to implement the duty to consult for both employers and employees.

Significant workplace change requires consultation and while standard consultation obligations exist under legislation and statutory instruments, they offer minimal guidance on how these obligations can be met. As judicial pronouncements concerning consultation tend to focus on compliance, they, too, provide little guidance beyond stating that consultation must be meaningful. Building on the foundation laid by the 2021 decision in Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059 (‘BHP Mt Arthur’), this article considers the parameters of the obligation to consult. To date, timing, rather than substance, has been emphasised by courts. Clear parameters are needed on how to implement the duty to consult, and these parameters need to come from statute or the authority of the courts. There is need for a deeper legal underpinning and more active obligations to shift from a conflict-cased approach toward proactive collaboration.

The BHP Mt Arthur decision

In BHP Mt Arthur, the company announced implementation of mandatory COVID-19 vaccination as a condition for site entry. The Construction, Forestry, Maritime, Mining and Energy Union (‘CFMMEU’) and Mr Matthew Howard filed an industrial dispute in the Fair Work Commission, arguing that Mt Arthur had not complied with the consultation requirements of the Work Health and Safety Act 2011 (NSW) (‘WHS Act’). These requirements include:

  • ‘relevant information’ about the matter is shared with workers;
  • workers are granted ‘reasonable opportunity’ to ‘express their views’ and ‘contribute to the decision making process’; and
  • that health and safety representatives (‘HSRs’) (where applicable) are included in consultation processes.

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