Your consultation obligations and AI

Consultation about major workplace change

Perhaps not?

You see all modern awards and enterprise agreements have consultation clauses which provide that, If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer has certain obligations. Here is what the Clerks – Private Sector Award 2020 says that the employer must do: 

(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and

(b) discuss with affected employees and their representatives (if any):

(i) the introduction of the changes; and

(ii) their likely effect on employees; and

(iii) measures to avoid or reduce the adverse effects of the changes on employees; and

(c) commence discussions as soon as practicable after a definite decision has been made.

38.2 For the purposes of the discussion under clause 38.1(b) , the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:

(a) their nature; and

(b) their expected effect on employees; and

(c) any other matters likely to affect employees.

38.3 Clause 38.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.

38.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause  38.1(b) .

38.5 In clause 38 significant effects , on employees, includes any of the following:

(a) termination of employment; or

(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or

(c) loss of, or reduction in, job or promotion opportunities; or

(d) loss of, or reduction in, job tenure; or

(e) alteration of hours of work; or

(f) the need for employees to be retrained or transferred to other work or locations; or

(g) job restructuring.

What happens if an employer does not consult or comply with the clause

Because it is a matter that is in the award, it is subject to the disputes settlement procedure in the award and accordingly employees and/or unions could lodge disputes with the Fair Work Commission for conciliation or arbitration of such a dispute.

What it all means

Firstly, let’s be clear, regardless of how you contract them, most employees have award coverage and therefore award consultation provisions will apply to most workers, especially those below executive and professional levels (although some awards cover some of them too).

So, if you are introducing changes with AI that will have an impact on jobs or roles or training or the other elements mentioned in the award clauses, start with what your award obligations say.

Secondly, be proactive and make a sound business case for what you are proposing to do and, if you can, engage your people in the design and change management process.

Thirdly, try to find ways to mitigate the effects for people through retraining, redeployment, redesign of jobs and other creative paths. Maybe there can be a bit of job crafting around life balance for some people. Maybe there is someone who would like to retire but needs some support to do that. It isn’t one size fits all but you do need to be fair.

Fourthly, keep it honest and transparent with frequent and open communication…..with compassion.

Fifthly, make it a positive experience for people and find milestones and reasons to celebrate along the way.

Finally, managing change is complicated in psychology and process, in effectiveness and from a legal perspective. Get someone who know how to do this stuff well and progressively to help you. 

Please call us on 0438 533 311 or email enquiries@ridgelinehr.com.au if you want to explore how we might be of assistance with any issues like this in your business.