We are long used to having obligations to consult employees on matters that affect them under Workplace Health and Safety laws and under modern awards and in other jurisdictions but, in recent years, the focus on consultation has intensified and has become more complex than employers have been used to. Plus, with the introduction of positive duties, the lines are getting a bit blurred between jurisdictions. So what does that all mean going forward?

Our traditional consultation obligations

For decades, awards have required employers to consult employees on matters that affect them like restructures and introduction of new technology and, more recently, a specific obligation to consult employees about variations to hours of work has been introduced.

Similarly, Workplace Health and Safety laws and regulations and codes of practice have imposed obligations on “Persons Conducting a Business or Undertaking” to consult workers about matters that might affect their health and safety.

These duties were largely interpreted as meaning that it is necessary to:

1. Inform people about a proposed change, why it is happening and what the potential effects on people are
2. Recognise any representative that employees might have like a Health and Safety Representative or a Union Representative
3. Listen to what the employees/workers and/or their representatives had to say and consider their views
4. Having done so, make a final decision and advise people of the outcome and reasons for it.

The duties also extended to responding to any concerns that people or their representatives might raise via WHS Issue Resolution Procedures or workplace relations dispute settlement procedures.

So what has changed? 

In short …. lots.

Fair Work Reforms

In recent years, the following changes have been made by the current federal Labor government:

• In relation to requests for flexible working arrangements for designated eligible employees under s65 of the Fair Work Act 2009 and for requests for extension of parental leave beyond 12 months, new consultation obligations and a passage to the Fair Work Commission for determination in the event of a dispute
• Similar obligations re consultation and avenues for dispute resolution in respect to the new FWC jurisdiction regarding “the right to disconnect”
• Increased scrutiny of the genuineness of consultation in enterprise agreement making, especially in relation to employees properly understanding the effects of approving the enterprise agreement (ie how it will affect them) and the employer’s obligation for full disclosure.

Positive Duties 

Essentially, these up the ante on what were already obligations to protect people from risks of injury and illness from sexual harassment and gender-based behaviour and psychosocial hazards.

The positive duties arose from a series of investigations and studies that showed that these risks were common and having serious effects on people’s psychological, emotional and physical wellbeing. Associated with that were ballooning costs in WorkCover claims and escalating demands on systems and resources for treatment of psychological injuries and illnesses.

As a result, we now have much more defined obligations re what we must do protect people from those risks and an increased regulator focus on those areas of risk with additional resources to prosecute them.

The other element is that there is a blurring of the lines in the sense that, with respect to certain matters such as the management of change or issues around sexual harassment (to name a couple), they can be prosecuted in multiple jurisdictions.

The Decisions

Governments make changes and then courts and tribunals decide how they should work.

There have been a number of cases that have been instructive in this regard:

1. SafeWork NSW intervened in a restructuring program at the University of Technology Sydney that was initiated to reduce costs and involved the potential loss of 150 jobs. On 2 September 2025, a Safe Work Inspector issued a prohibition notice in the belief that UTS workers would be exposed to a “serious and imminent risk of psychological harm” as a result of UTS’s Academic Change Proposal, in contravention of the Work Health and Safety Act and the Work Health and Safety Regulation. They had to pause the process and go through a process of adjustments and convincing SafeWork NSW that they were going through an appropriate process.
2. At around the same time, the Finance Services Union lodged a dispute with the Fair Work Commission over extensive job cuts at ANZ and the consultation process associated with them putting a similar matter into a different jurisdiction, but with the union making reference to psychosocial hazards around poor change management being in play.
3. In another case, Westpac was found wanting relative to a request for a flexible working arrangement from an eligible employee under s65 of the Fair Work Act 2009 in that they didn’t have genuine business grounds, they didn’t consult properly (in considering the employee’s compromise proposal) and they didn’t comply with their statutory obligation to respond to the request within 21 days.

What can we learn from this?

There are quite a few takeaways:

1. Psychosocial hazards are a hot issue for WHS regulators and the positive duty on employers means that you have to be able to show that you are actively managing them and properly consulting people, not just reacting when something happens.
2. The lines between different jurisdictions are becoming increasingly blurred and people will access the one that they feel offers the best avenue for a win for them as has happened with the WHS pathway in the UTS case and the FWC pathway in the FSU/ANZ case.
3. Gone are the days when you could just treat consultation as a tick box exercise, rather than as an active, inclusive and genuine consideration with real employee voice and wellbeing components.
4. When implementing significant change in your business which affects people’s roles or the way that they perform their duties, ensure that you plan and execute the changes carefully, understanding the real effects for people and allowing adequate time and proper consideration of employees’ questions and views.
5. You should also have due regard for employees’ wellbeing, your consultation obligations under both WHS and workplace relations law (and any other relevant jurisdiction) and how you support people individually and collectively through the change process.
6. Change is complicated and it is something that you should get professional assistance with from someone who understands the legal obligations in the various jurisdictions and is also adept in communicating with employees and helping the business, managers and people through the process.

One of the key challenges for large employers is how they reintegrate their HR and WHS functions so as to manage relevant matters consistently across jurisdictions and with their management teams and workforce in general. Establishing an ongoing Workplace Consultative Group to deal with these matters collaboratively is a good option and one that is recommended by some regulators.

For smaller businesses, it is how they manage the expectations of multiple jurisdictions in a practical and effective way within their businesses and resources. The focus should be on keeping it simple in process, active in education and communication and having access to professional support to do that and deal fairly and quickly with any issues that arise.

The positive duties also extend consultation obligations to contractors and their employees, so you need to include them as well.

Our Practice Leader, Peter Maguire, is available to facilitate discussions with your management group or your Safety or Consultative Committee to work through these questions and tailor the right approach for your business and your people.  If you would like to know more about this, please let us know via the Contact Form below.

Note: this article was originally published in Timber Trader Magazine.