The recent blockades of Australia’s waterfront and ports may bring flashbacks to the 1998 Waterfront Dispute and have people questioning where the workplace word of the millennium, “Collaboration” has gone.

It’s true, “Collaboration” may have averted the recent blockades and industrial disputation. However “Collaboration” cannot account for the differing goals of employers, employees and unions, in this situation. Rather what is required is the other “C” word, “Consultation”. Specifically, it was the lack of consultation in this most recent waterfront dispute which lead to the Federal Court forcing the employer to continue employing the workers; and provides a valuable lesson for all employers seeking to reduce its workforce through redundancies, or indeed introduce any form of change in the workplace.

Consultation is a mandatory provision in every enterprise agreement made pursuant to the Fair Work Act 2009 (Cth) Modern Awards also contain specific consultation provisions about changes in the workplace. Moreover, where the consultation obligations in an enterprise agreement or Modern Award are complied with, it will provide employers with a defence to a claim of unfair dismissal based upon redundancy. Accordingly, the importance of consultation cannot be overlooked.

In this recent waterfront dispute, the employer had entered into an enterprise agreement with the relevant union, pursuant to the Fair Work Act 2009 (Cth). Accordingly, that enterprise agreement contained specific consultation obligations which required it to consult with employees affected and the relevant Union regarding workplace change and potential redundancies. Moreover, within the enterprise agreement, the employer agreed to provide relevant information about the changes to the Company in writing.

Specifically in this case, it is reported that approximately 100 employees were sent text messages late at night asking that they check their emails for a personal letter regarding a redundancy program notification. Upon checking their emails, employees were then advised that their positions would be made redundant in 7 days, that there were no redeployment opportunities and that they wouldn’t be required to attend work whilst waiting for their redundancies to take effect.

It was the text message and emailed letter which the employer primarily sought to rely upon in convincing the Federal Court that it had complied with its consultation obligations and that the redundancies should proceed. The Federal Court took a differing view of the employers actions, and at least until the substantive issues can be heard next month, has restrained and prevent the employer from proceeding with the redundancies. Moreover, the union is now seeking civil penalties against the employer for failing to comply the consultation obligations in its enterprise agreement.

Aside from the lost revenue suffered when ships were turned away from Ports, this employer has been forced to continue to employ approximately 100 employees for at least a further 4 weeks, deal with the reputational damage inflicted by negative media attention and interlocutory court proceedings, because it failed to convince a Court that it engaged in consultation.

Whilst collaboration is an important part of all workplaces, consultation is fundamentally important, especially when introducing change. This recent waterfront dispute is a timely reminder to all employers of the importance of complying with all of their consultation obligations when introducing change and in particular when restructuring and/or making positions redundant. Not only will compliance with consultation obligations provide employers with a defence to an unfair dismissal based upon a redundancy, but if those obligations are in an enterprise agreement, avoid civil penalties of up to $51,000.

If your organisation proposes to restructure its workforce, contact Rachael Sutton | Partner | rachael.sutton@holmanwebb.com.au or Alicia Mataere | Senior Associate | alicia.mataere@holmanwebb.com.au for advice on how to consult and effect that restructure in compliance with your obligations.