As we have seen, some employers are likely to make policy and operational changes that negatively affect our members’ interests in response to the COVID-19 pandemic. Employers have obligations under WHS legislation and the Fair Work Act 2009 (the “FW Act”) to consult with employees about these types of changes.
Consultation relation to health and safety risks
1. An employer has legal obligations to ensure the health and safety of their workers so far as is reasonably practicable by managing risks to health and safety.
2. The Union and elected Health and Safety Representatives (HSRs) have a role to play. As the spread of COVID-19 is a health and safety risk, employers are legally required to:
a. provide a work environment without risk to health & safety;
b. have a plan to manage risks and protect workers;
c. provide adequate facilities for the welfare of workers and ensure access to those facilities;
d. provide any information, training or instruction that is necessary to protect workers and
e. consult with workers and any HSRs in developing a plan, and prior to making any decision, in relation to health and safety.
3. Where workers/HSRs have concerns regarding the employer’s systems for managing risks to health & safety, they are free to initiate the issue resolution provisions of their respective health and safety legislation & are entitled to have union representation at such meetings.
4. HSRs have additional functions and powers to require the employer to consult with them regarding any health & safety matter, request assistance from any person (including a union official), request a review of any health & safety control measures they consider inadequate and, should they be of a view that the employer is not meeting any of their duties, issue a provisional improvement notice (PIN) subject to prior consultation.
Consultation in respect of “major change” and rosters/hours of work
5. Employers covered by the Fair Work Act 2009 (the “FW Act”) also have obligations to consult with its employees that arise when:
a. they propose to introduce “major change” that has a “significant effect” on members; and/or
b. where they propose to make changes to rosters or ordinary hours of work.
6. While consultation does not require that the employer and employee reach agreement, it must be a real opportunity for employees to make representations regarding their interests and have those considered by the employer when it makes or implements a decision.
7. The general requirements in respect of consultation are that the employer is required to:
a. notify employees about the change;
b. provide relevant information about the change to employees and their representatives;
c. discuss the effects of the changes on employees and measures taken to avert or mitigate adverse effects of the change;
d. give prompt consideration to matters raised by employees.
8. You should review the consultation term of the relevant industrial instrument closely, as it may provide for different obligations in respect of, for example:
a. when consultation is required to commence (before or immediately after a decision is made);
b. whether the employer is required to consult directly with the Union as an affected party, rather than an appointed representative;
c. the breadth and quality of the information provided by the employer; and
d. time limits and scheduling of consultation.
9. AMWU Delegates and HSRs are being directed to the ACTU COVID – 19 Resource Centre which will be regularly updated. Remember, with the current level of misinformation, it is advised to consider only information from trusted government sources or the ACTU Resource Centre.