Fair Work Commission instructs Deakin University on Meaningful Consultation

A Fair Work Commission (FWC) decision handed down on 30 July provides employers with instruction on when and with whom they should seek consultation with workers.

Commissioner Bissett, in her decision, after agreeing that Deakin University’s timing for consultation was sound, stated however that “… because of the nature of the proposal and its implications for staff University-wide, the University should embark on consultation with the National Tertiary Education Union (NTEU) and affected staff at the University-wide level…”

This was the position of the NTEU which claimed that the university’s plans to reduce 400 positions was an institution-wide plan, and not merely changes to contained sectors of the university. Commissioner Bissett agreed saying that the university’s 15 separate proposals for 15 areas in fact “all arise from one issue and one decision of the university” – how to manage costs during, and as a result of, the pandemic.

Ms Bissett acknowledged that the university’s “manipulation of a single issue into 15 portfolios is not necessarily wrong” – it merely made the issue manageable. It was the way the university did so “in such a way that there is, realistically, no opportunity for meaningful consultation on the overarching aspects of the proposal”, which included the number of positions lost and how to manage vacancies and reductions in staff.

“The ability of affected staff and the NTEU to have any meaningful consultation has been severely curtailed by the approach adopted by the university.”

Additionally, the Commissioner outlined the distinction between a ‘proposal’ and ‘strategy’ – the significance here was the extent to which the university had determined to proceed with a strategy for job cuts, and at which point they’re required to consult.

The NTEU claimed that the university had already developed a formal proposal for their major workplace changes, at the time they began consultation with employees in May. They claimed that the formal proposal had been developed back in March, when the university council began endorsing procedures and actions underpinning their response to the pandemic.

The union also argued that by the time Deakin told employees in a May Zoom meeting that it was commencing consultations, it had already developed a formal proposal for major workplace change.

The union said this happened by mid-March when the university council endorsed principles and actions underpinning Deakin’s COVID-19 response. Such principles included a pause on non-critical recruitment and the consideration of reductions to employment costs.

At the very least, the NTEU claimed, the university had developed a formal proposal by early May – prior to their consultation – when the council approved a program for university-wide budget sustainability.

Deakin, however, said the consultation clause in their 2017 agreement did not require consultation until it finalised a decision to proceed. They claimed no finalised decision to proceed had occurred.

Ms Bissett stated that Deakin’s recognition that it needed to respond to pandemic challenges “does not mean there is a proposal for change on which it is required to consult”, and nor was its endorsement of approval of strategies and principles “in and of itself a proposal for change.” Including its proposal to consider reductions to staff.

The commissioner was therefore not convinced the university had already developed a formal proposal for change by May when it began its staff consultation, and therefore was not concerned with the university’s choice of timing so much as its non-compliance with meaningful consultation obligations.

The university has since invited opportunities for feedback from staff and will continue with its staff consultation, albeit this time with all staff and making material available for viewing by all staff through their internal document sharing database.

For more information on the Fair Work Commission decision click here

This article has been prepared by WR Law for information purposes only and is not legal advice. Please contact WR Law directly for legal advice regarding your specific circumstances.

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