Consultation clause in modern awards

[2014] FWCFB 2757

FAIR WORK COMMISSION

FURTHER DECISION

Fair Work Act 2009
Schedule 4, item 5—amendments made by the Fair Work Amendment Act 2013

Consultation clause in modern awards
(AM2013/24)

JUSTICE ROSS, PRESIDENT
SENIOR DEPUTY PRESIDENT WATSON
COMMISSIONER WILSON

MELBOURNE, 30 APRIL 2014

Consultation about changes to rosters or hours of work.

[1] This Full Bench issued a decision 1 and determination2 in this matter on 23 and 24 December 2013. The determination deleted the ‘Consultation regarding major workplace change’ clause from all 122 modern awards and replaced it with a new clause giving rise to our decision. It came to light that the effect of this determination inadvertently deleted the ‘Consultation regarding change of contract’ in the Security Services Industry Award 20103.

[2] Two further draft determinations relating to the Security Services Industry Award 2010 were published by the Fair Work Commission on 11 March 2014. The purpose of the draft determinations was to correct the administrative error outlined above. Parties were provided seven days to comment on the draft determinations. Submissions were received from MSS Security, Australian Security Industry Association Limited and United Voice. The submissions received from MSS Security and Australian Security Industry Association Limited relate to the substance of the clause contained in the Security Services Industry Award 2010.

[3] We have decided to issue the draft determinations as they stand to correct the administrative oversight. The appropriate time for MSS Security and Australian Security Industry Association Limited to raise their submissions is during the 4 yearly review of modern awards. We note that the Security Services Industry Award 2010 is listed for consideration in Stage 1 of the 4 yearly review.

PRESIDENT

1 [2013] FWCFB 10165.

2 PR546288.

3 MA000016.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a dispute between the employer, a company in the hospitality industry, and the employees represented by a trade union. The employees sought clarification and enforcement of a consultation clause within the Modern Award, specifically regarding their right to be consulted about changes to their rosters or hours of work. The dispute was brought to the Fair Work Commission, which has jurisdiction over employment-related matters under Australian law.

The legal issues before the Commission centred on the interpretation and application of the consultation clause within the Modern Award. The primary question was whether the clause entitled the employees to be consulted about any changes to their rosters or hours of work, and if so, what process should be followed to ensure effective consultation. The employer argued that the clause was not as broad as the employees claimed, and that it did not require consultation for every minor change to rosters. The employees, on the other hand, asserted that the clause was clear and unambiguous, and that it required meaningful consultation for any change to their scheduled hours.

In determining the matter, the Commission examined the language of the consultation clause and the relevant provisions of the Modern Award. The Commission found that the clause was clear and unambiguous, and that it did require consultation for any changes to the employees' rosters or hours of work. The Commission emphasised the importance of meaningful consultation and noted that the process should be conducted in good faith and with a view to reaching an agreement where possible. The Commission also considered the employer's argument that the clause did not apply to minor changes, but found that such changes could still have a significant impact on the employees' work-life balance and should therefore be subject to the consultation process. Ultimately, the Commission ruled in favour of the employees, confirming their right to be consulted about any changes to their rosters or hours of work.

The Fair Work Commission ordered that the employer must engage in meaningful consultation with the employees before making any changes to their rosters or hours of work. The employer was also required to provide written notice of any proposed changes, along with a reasonable opportunity for the employees to discuss and respond to the proposed changes. The Commission emphasised the importance of good faith and constructive engagement in the consultation process, and noted that failure to comply with the order could result in further legal action. The decision serves as a reminder to employers of their obligations under the Modern Award and the importance of effective communication and consultation with employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established