Consultation with employees is not only a condition of the various industrial instruments and legislation governing our employment relationships but it can build trust and allow employee voices to be heard. Failing to consult appropriately may lead to courts and/or the Fair Work Commission (FWC) overturning employers’ decisions, causing unnecessary cost and disruption to your business.

The Victorian Chamber’s Workplace Relations team has compiled the top five mistakes to avoid when consulting with employees.

#1: Do we have to consult?

The first step of any change process should be to answer this question, but employers often misunderstand their consultation obligations, creating uncertainty and unnecessary risk.

The answer is not always as simple as you may think. It may depend on what the issues are and whether an Award or enterprise agreement applies to your business and your employees.

In many cases, the employer is not required to consult with employees on the overall change decision; for example, the introduction of a new IT system or updating a policy. However, the implementation element of the change may require consultation with employees due to the introduction of new processes and procedures or potential changes to employees’ jobs.

Our Workplace Relations Consultants have the experience to help you consider the requirements and to make the right consultation decision for your context.

#2: Not consulting at the right stage of the decision-making process

Deciding when to consult can be as important as what to consult on. Waiting to have all the answers before consulting with employees may give rise to complaints that you have not met your consultation requirements properly. Conversely, early consultation may help promote trust and transparency, but your employees may then become impatient for greater detail.

The right timing around consultation and information sharing will contribute to the overall effectiveness of your business change or decision. Getting this right will also support the ongoing positive impact on workplace culture. Careful planning and a strategic approach may be as important as the substantive change itself.

#3: Not providing all the relevant information to employees.

While there will be some commercially sensitive information about a proposed decision that cannot be shared with employees, employers need to ensure that all other information that can and should be shared with employees is made available.

The appropriate level of detail will vary depending on the circumstances and the nature of the proposed change. A key factor in building and maintaining trust in the working relationship, and meeting your consultation requirements, is sharing the appropriate information at the right time and then seeking feedback from your employees.

#4: Not allowing employees enough time to consider and respond to the information

If employees are not given enough time to consider the information provided, and/or to provide their feedback to the organisation, consultation processes may not meet the necessary requirements under the relevant Award or enterprise agreement.

Remember that consultation is about “this is what we are thinking of doing, what is your feedback on this?” rather than “this is what we have decided to do”. Businesses often face external pressures to make decisions quickly but some extra time spent at this stage can pay off in the longer term.

#5: Confusing ‘consultation’ with ‘agreement’

A key element of any consultation process is to ensure feedback is considered appropriately. This does not mean you have to agree with the feedback or even take action based on your employees’ preferences. However, it is good practice to demonstrate that employee views have been genuinely considered. This can be achieved by setting the expectation upfront about who will make the final decision, and then clearly describing the reasons and basis for the final decision, including explaining how you took account of employee feedback.

Genuine consultation with employees (avoiding the mistakes above) helps employers demonstrate an open and transparent approach to managing change, and this will build trust with your workforce, and help meet your legal obligations to consult.

How we can help

The Workplace Relations Advice Line offers general advice on a range of workplace issues, including your consultation obligations.

For more specific enquiries, the Victorian Chamber’s Workplace Relations Consultants are skilled in advising employers on the best strategic and compliant approaches, to achieving effective and sustainable consultation outcomes.

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on 8662 5222.