Circular 2022/08: Genuine and effective employee and union consultation in Commonwealth agencies

Purpose

1. The purpose of this circular is to inform agencies about the Australian Government’s policy concerning genuine and effective consultation with employees and relevant unions on matters that affect them in Commonwealth workplaces.
2. As a model employer, the Government expects agencies to positively engage in genuine consultation with employees and unions on workplace matters that affect them. Agencies should ensure managers are aware of these consultation requirements.
3. This circular outlines consultation requirements to apply in Government workplaces that go beyond the model consultation term, noting that agencies are not required to do anything that would be inconsistent with their legal obligations (for example ensuring they comply with privacy laws).

Benefits of genuine and effective consultation

4. Genuine and effective consultation with employees and relevant unions is sound management practice. It fosters a positive and inclusive workplace culture, where the views of employees are considered and taken into account before decisions that substantially impact them are made or implemented.
5. The benefits to agencies of genuine and effective employee and union consultation include enhanced employee engagement and morale, increased productivity, access to new ideas, better outcomes in change implementation, stronger employee commitment to agency goals and objectives and improved staff retention.

Key expectations

6. The Government expects that agencies will adopt genuine and effective consultation arrangements that enable employees and relevant unions to have a voice on matters that affect them in the workplace.

7. The Government also recognises that final decisions on matters, particularly those that are significant, will continue to rest with decision makers (i.e. the agency head).
8. Consultation generally includes:
   1. providing a genuine opportunity to influence a decision or implementation of a decision
   2. providing relevant information to employees and unions in a timely manner to support consideration of the issues
   3. considering the feedback from employees and unions
   4. advising employees and unions of the outcome of the consultation and the decision
   5. respecting the rights of employees to be represented and for unions to be engaged in a consultative process.

General consultation

9. The Government expects that agencies, as model employers, will facilitate consultation with employees and relevant unions on workplace matters that affect them.
10. This could be achieved by establishing workplace relations consultative forums (if none presently exist), digital forums, email inboxes, hotlines or suggestion boards/boxes.
11. All consultative arrangements should be inclusive and respectful and take into account the diverse needs of employees, including means by which employees can access information and anonymously provide views.  
12. Unions speak on behalf of their members and have an important role to play in supporting employees and facilitating communication on workplace matters. Agencies should develop collaborative relationships with relevant unions in the workplace, including by ensuring that there is union representation on workplace relations consultative committees.
13. The minimum representation rights of employees are protected under the Fair Work Act 2009 (Fair Work Act). The role of employee representatives, including union delegates, are to be respected and facilitated as they perform a vital role in consultation processes.
14. Recognising the role of unions does not replace the need for agencies to consult broadly and directly with all employees, including those who are not represented by a union.

Model consultation term

15. The Fair Work Regulations 2009, Regulation 2.09 provides for the inclusion of a model consultation term in enterprise agreements. The model term sets out the minimum legislative responsibilities of employers to consult with employees when implementing major change and/or when considering a proposed change to regular rosters or hours of work.
16. The model consultation term only requires that employers consult with their employees after a decision to implement a major change has occurred. The model term does not require consultation with employees about major change before a decision is made.
17. Despite the operation of the model consultation term, the Government expects Commonwealth agencies, as model employers, to put in place measures that support to the greatest extent practical genuine consultation about major change and other issues, before any final decision has been made by a decision maker (including the agency head).
18. It may not be practical or realistic for the agency to consult with employees on all matters facing the agency and its employees such as, for example, Cabinet Budget decisions. In that example, consultation would occur on implementation.

Further information and advice

19. Should you require further information or assistance on this matter, please contact your APSC Relationship Manager or contact the workplacerelations@apsc.gov.au mailbox.
20. Further information on the model consultation term in enterprise agreements is available on the Fair Work Commission’s website here.