66. Consultation and Consultative Committees

Principles

66.1 Genuine and effective consultation with employees and the relevant union(s), taking into account the diverse needs of employees, fosters a positive and inclusive workplace, enabling the views of employees to be considered.

66.2 The department recognises:

1. the importance of inclusive and respectful consultative arrangements;
2. employees and the relevant union(s) should have a genuine opportunity to influence decisions;
3. the nature and extent of consultation will vary depending on the proposed change and the likely impact on employees. Consultation on agency policies may occur over at least two weeks, whereas a major change is likely to require a more extensive consultation process;
4. consultation with employees and relevant unions(s) on workplace matters that significantly affect or materially impact them is sound management practice; and
5. the benefits of employee and union involvement and the right of employees to be represented by their union.

66.3 Genuine and effective consultation involves:

1. providing employees and the relevant union(s) with a genuine opportunity to influence the decision prior to a decision being made;
2. providing all relevant information to employees and the relevant union(s) in a timely manner to support consideration of the issues;
3. considering feedback from employees and the relevant union(s) in the decision-making process; and
4. advising employees and the relevant union(s) of the outcome of the process, including how their feedback was considered in the decision-making process.

When consultation is required

66.4 Consultation is required in relation to:

1. changes to work practices which materially alter how an employee carries out their work;
2. changes to or the introduction of policies or guidelines relevant to workplace matters (unless the changes are minor or procedural);
3. major change that is likely to have a significant effect on employees;
4. implementation of decisions that significantly affect employees;
5. changes to employees’ regular roster or ordinary hours of work (subject to any other relevant provisions in this agreement); and
6. other workplace matters that are likely to significantly or materially impact employees.

66.5 The department, employees and the relevant union(s) recognise that consultation prior to a decision may not be practicable where a decision is made by Government or is required due to matters beyond the reasonable control of the department. In these circumstances, consultation regarding the implementation of the decision will occur as early as is reasonably practicable.

Provisions for consultation on major change and introduction of a change to regular roster or ordinary hours of work of employees

66.6 This clause applies if the department:

1. proposes to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the employees; or
2. proposes to introduce a change to the regular roster or ordinary hours of work of employees.

Representation

66.7 Employees may appoint a representative for the purposes of the procedures in this clause. A representative for the purpose of this clause may be a union representative.

66.8 The department must recognise the representative if:

1. a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and
2. the employee or employees advise the employer of the identity of the representative.

Major change

66.9 In this clause, a major change is likely to have a significant effect on employees if it results in, for example:

1. the termination of the employment of employees; or
2. major change to the composition, operation or size of the employer’s workforce or to the skills required of employees; or
3. the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or
4. the alteration of hours of work; or
5. the need to retrain employees; or
6. the need to relocate employees to another workplace; or
7. the restructuring of jobs.

66.10 The following additional consultation requirements in clause 66.11 to 66.17 apply to a proposal to introduce a major change referred to in subclause 66.4(c).

66.11 Consultation with employees and the relevant union(s) and/or recognised representatives will occur prior to a decision being made, subject to clause 66.5.

66.12 Where practicable, a primary point of contact will be appointed and their details provided to employees and the relevant union(s) and/or their recognised representatives.

66.13 The department must notify employees and relevant union(s) and/or recognised representatives of the proposal to introduce the major change as soon as practicable.

66.14 As soon as practicable after proposing the change, or notifying of the change in circumstances described at clause 66.5, the department must:

1. discuss with affected employees and relevant union(s) and/or other recognised representatives:
   1. the proposed change;
      1. the effect the proposed change is likely to have on the employees; and
      2. proposed measures to avert or mitigate the adverse effect of the proposed change on the employees; and
   2. for the purposes of the discussion – provide, in writing, to employees and the relevant union(s) and/or other recognised representatives:
      1. all relevant information about the proposed change, including the nature of the change proposed; and
      2. information about the expected effects of the proposed change on the employees; and
      3. any other matters likely to affect the employees.

66.15 The department must give prompt and genuine consideration to matters raised about the major change by employees and the relevant union(s) and/or other recognised representatives.

66.16 However, the department is not required to disclose confidential or commercially sensitive information to employees and the relevant union(s) and/or other recognised representatives.

66.17 If a term in this agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the agency, the requirements set out in clauses 66.11 to 66.15 are taken not to apply.

Change to regular roster or ordinary hours of work

66.18 The following additional consultation requirements in clause 66.19 to 66.22 apply to a proposal to introduce a change referred to in subclause 66.6(b).

66.19 The department must notify affected employees and the relevant union(s) and/or other recognised representatives of the proposed change.

66.20 As soon as practicable after proposing to introduce the change, the department must:

1. discuss with employees and the relevant union(s) and/or other recognised representatives:
   1. the proposed introduction of the change; and
2. for the purposes of the discussion – provide to the employees and relevant union(s) and/or other recognised representatives:
   1. all relevant information about the proposed change, including the nature of the proposed change; and
   2. information about what the employer reasonably believes will be the effects of the proposed change on the employees; and
   3. information about any other matters that the employer reasonably believes are likely to affect the employees; and
3. invite employees and the relevant union(s) and/or other recognised representatives to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities). However, the department is not required to disclose confidential or commercially sensitive information to the relevant employees and the relevant union(s) and/or other recognised representatives.

66.21 The department must give prompt and genuine consideration to matters raised about the proposed change by the employees and the relevant union(s) and/or other recognised representatives.

Interaction with emergency management activities

66.22 Nothing in this term restricts or limits the ability of a designated emergency management body to undertake activities provided at section 195A(1) of the FW Act.

Departmental consultative committee

66.23 The Clerk may establish the Workplace Consultative Committee to discuss relevant workplace matters.

66.24 The consultative committee will operate subject to an agreed terms of reference and structure for the term of the agreement. Representation on the committee will be in accordance with the terms of reference.

67. Dispute resolution

67.1 If a dispute relates to:

1. a matter arising under the agreement; or
2. the NES;

this term sets out procedures to settle the dispute.

67.2 An employee or union who is covered by this agreement may initiate and/or be a party to a dispute under this term.

67.3 An employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this term. Representatives will be recognised and dealt with in good faith.

67.4 Parties to the dispute must attempt to resolve the dispute at the workplace level, by discussion between the employee or employees and relevant managers. Parties to the dispute will notify higher level managers to assist in the resolution of the dispute. Parties will give genuine consideration to proposals to resolve the dispute.

67.5 If a dispute about a matter arising under this agreement is unable to be resolved at the workplace level, and all appropriate steps under clause 67.4 have been taken, a party to the dispute may refer the dispute to the FWC.

67.6 The FWC may deal with the dispute in two stages:

1. the FWC will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
2. if the FWC is unable to resolve the dispute at the first stage, the FWC may then:
   1. arbitrate the dispute; and
   2. make a determination that is binding on the parties.

Note: If the FWC arbitrates the dispute, it may also use the powers that are available to it under the FW Act. A decision that the FWC makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the FW Act. Therefore, an appeal may be made against the decision.

67.7 While the parties are attempting to resolve the dispute using the procedures in this term:

1. an employee must continue to perform their work as they would normally in accordance with established custom and practice at the department that existed immediately prior to the dispute arising unless they have a reasonable concern about an imminent risk to their health or safety; and
2. subject to clause 67.7(a), an employee must comply with a direction given by the employer to perform other available work at the same workplace, or at another workplace, unless:
   1. the work is not safe; or
   2. applicable work health and safety legislation would not permit the work to be performed; or
   3. the work is not appropriate for the employee to perform; or
   4. there are other reasonable grounds for the employee to refuse to comply with the direction.

67.8 The parties to the dispute agree to be bound by a decision made by the FWC in accordance with this term.

67.9 Any disputes arising under the Department of the Senate Enterprise Agreement 2017-2020 as maintained by the Parliamentary Services (Subsection 24(1) – Department of the Senate Non-SES Employees) Amendment Determination 2022 or the NES that were formally notified under clause 8 of that agreement before the commencement of this agreement, that remain unresolved at the date of commencement of this agreement, will be progressed under the dispute resolution procedures in this agreement.

Leave of absence to attend proceedings

67.10 Where the provisions of clauses 67.1 to 67.5 have been complied with, and to assist in the resolution of the matter, the employee, and/or the union delegate or other employee representative referred to in clause 67.2, or employee required to provide evidence, will be granted paid time to attend dispute resolution processes and proceedings in the FWC arising from referral of the matter in clause 67.5.

68. Delegate’s rights

68.1 Union delegates play an important and legitimate role in the workplace. This includes representing their members and supporting employee access to union officials, and providing employee views to the department.

68.2 The role of union delegates is to be respected and supported.

68.3 The department and union delegates will work together respectfully and collaboratively.

Supporting the role of union delegates

68.4 The department respects the role of union delegates to:

1. provide information, consult with and seek feedback from employees in the workplace on workplace matters;
2. consult with other delegates and union officials, and get advice and assistance from union officials;
3. represent the interests of members to the employer and industrial tribunals; and
4. represent members at relevant union forums, consultative committees or bargaining.

68.5 The department and union delegates recognise that undertaking the role of a union delegate is not the primary purpose of an employee’s engagement, and must work with and not unreasonably impact their regular duties. Honorary officials may request additional time and facilities from time to time.

68.6 Union delegates will be provided with reasonable paid time during their normal working hours to perform their union delegate role. The paid time provided should not result in disruption to critical services or operational requirements.

68.7 To support the role of union delegates, the department will, subject to legislative and operational requirements, including privacy and security requirements:

1. provide union delegates with reasonable access to agency facilities and resources, including for paid or unpaid meetings between employees and their unions and to communicate with union officials;
2. advise union delegates and other union officials of the agency facilities and resources available for their use, which may include telephone, photocopying, internet, and email;
3. allow reasonable official union communication appropriate to the department from union delegates with employees, including through email, intranet pages and notice boards. This may include providing a link to a union website for employees to access union information. Any assistance in facilitating email communications does not include the department vetoing reasonable communications;
4. provide access to new employees as part of induction; and
5. provide reasonable access to union delegates to attend appropriate paid time training in workplace relations matters, during normal working hours.

68.8 Where Parliamentary Service employees are elected as officials of a trade union or professional association, they are not required to seek permission from the workplace or department before speaking publicly in that capacity, subject to the Parliamentary Service Code of Conduct and legislative requirements.