When information supply is NOT consultation

In Australia there is a purposely created commonality between the developing OHS law and industrial relations law on certain issues.  Consultation is one of those matters and, although a decision by the Federal Court of Australia on 11 June 2010 relates to the Fair Work Act, safety professionals and business owners should take note.

On 22 June 2010, Justice John Logan fined Queensland Rail $A660,000 for not consulting its workforce on the company’s privatization plan which would have affected employees’ jobs. (An ABC podcast of the matter is available online)  One media report paraphrased Justice Logan:

“[he]told the court that workers were never given the opportunity to discuss if they would be moved into the new private business, how the privatisation would occur, or if they wanted privatisation in the first place.”

The most pertinent comments from 11 June 2010 judgement by Justice Logan are also quoted in various media reports:

“This change so radical, a breach so comprehensive, the occasion for consultation so obvious that anything less than maximum penalties would not do justice to the case and the need to ensure public confidence in the adherence to industrial relations bargains.”

The Australian quotes Justice Logan as saying

“Benign dictatorship is not to be equated with consultation…”

AAP in The West Australian adds another quote:

“”To exclude workers is a very serious contravention … of a very important modern workplace right.”

On the technical matters of consultation, section 205 of the Fair Work Act 2009 says

“An enterprise agreement must include a term (a consultation term) that:

(a) requires the employer or employers to which the agreement applies to consult the employees to whom the agreement applies about major workplace changes that are likely to have a significant effect on the employees; and

(b) allows for the representation of those employees for the purposes of that consultation.”

Section 48 of the model Work Health & Safety Act states:

“Nature of consultation

(1) Consultation under this Division requires:

(a) that relevant information about the matter is shared with workers; and

(b) that workers be given a reasonable opportunity:

(i) to express their views and to raise work health or safety issues in relation to the matter; and

(ii) to contribute to the decision-making process relating to the matter; and

(c) that the views of workers are taken into account by the person conducting the business or undertaking; and

(d) that the workers consulted are advised of the outcome of the consultation in a timely manner.

(2) If the workers are represented by a health and safety representative, the consultation must involve that representative.”

Safe businesses always knew that talking to employees, listening to employees and engaging employees in maintaining or developing their own levels of safety and safety management was an indispensable element of success.  OHS regulators were forced to amend their legislation to overtly state that this was the case but consultation requires, above all things, trust.  It is this that underpins much of the managerial waffle about safety culture.

But also employers, companies and even some member-based organisations who should know better, must acknowledge that there is no trust without transparency.  If the success, profitability and safety of a company or organisation is the responsibility of all, then all need to be informed of the basis for corporate decision-making and involved in that process – Consultation.

Queensland Rail will be appealing the Federal Court decision and may win however, Just John Logan’s application of the maximum penalty places a dollar value on not consulting with workers.  Some risk managers will be factoring this into their risk/cost matrix but safety professionals need only point i the cost out to their supervisors or directors to gain additional support in their safety management systems.

Kevin Jones

reservoir, victoria, australia

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