What constitutes 'direct consultation'?
The HEWRRs require direct consultation between employers and employees with the involvement of third parties representing employees only where requested by an affected employee.
The mechanism used for the direct consultation between employers and employees is not prescribed in the HEWRRs and is a matter for the HEP.
Does the requirement for direct consultation require consultation with employees through consultative committees (or other like bodies)?
The HEWRRs require direct consultation with employees. The means of consultation is not presented but assumes all employees will have the opportunity to contribute. Communication through a structure, which in practical application, excludes the individual employee and gives third parties a dominant or potentially exclusive role in the decision making or consultation process will not comply with the HEWRRs.
Is it necessary for HEPs to have consultative committees (or other like bodies)?
No. As stated above, the HEWRRs require direct consultation with employees. They further preclude third party involvement unless requested by an affected employee. To achieve direct involvement of employees, HEPs may want to adopt other methods for communicating directly with employees, such as direct meetings with affected staff, employee focus groups or open workplace forums. Consultative committees must not impede flexibility.
Where HEPs choose to use consultative committees, they must not be set up in such a way that the flexibility of the HEP is compromised. Furthermore, consultative committees provided for in workplace agreements must be set up in such a way that they are consistent with the WR Act. HEPs should seek advice from the OEA to ensure that committee structures and other consultative bodies referred to in workplace agreements are consistent with WR Act requirements, particularly in regard to prohibited content.
If a HEP chooses to use consultative committees as a consultation tool, what will be required as a minimum for these consultative committees to comply with HEWRRs?
Where a HEP chooses to use consultative committees, the HEP must be mindful of the requirements in HEWRR 2 which demands direct relationships with employees. The HEP should also be mindful of HEWRR 3 which requires flexible arrangements and HEWRR 4 which requires that a HEP’s workplace arrangements support organisational productivity and performance.
To this end, where a HEP chooses to use consultative committees, clauses in the applicable employment instrument(s), workplace policies and practices regarding consultative committees should include the following features:
- Consultative committees should not be the sole or principal means of communication with staff or for the resolution of workplace issues, and should not possess any decision-making capability.
- A consultative committee should not limit the ability of the HEP to respond to changing circumstances nor supplant the management prerogative of HEPs.
- A single consultative committee should not be delegated responsibility for all workplace issues. Different committees with different members who are affected by the issues in question should be convened to deal with specific issues as they arise.
- Consultative committees must be flexible. The membership of consultative committees must reflect the persons who are directly affected by the issues that the committee is dealing with.
- Clauses in the applicable employment instrument(s) must be consistent with the WR Act. HEPs should seek advice from the OEA to ensure that committee structures and other consultative bodies referred to in workplace agreements are consistent with WR Act requirements, particularly in regard to prohibited content.
Is it necessary for consultative committees to be elected?
Consultative committees must include direct employee involvement. The method for determining how direct employee involvement is achieved is a matter for the HEP.
Is staff union representation on committees inconsistent with the HEWRRs?
No, staff union representation on committees is not inconsistent with the HEWRRs. However, such arrangements must be complemented by employee representatives who have been elected, nominated or selected by staff to represent all staff regardless of whether they are not, or are, union members. The method for electing, nominating or selecting employee representatives is a matter for each HEP to determine.
Union representation on committees provided for in workplace agreements must also be consistent with the WR Act and HEPs should seek advice from the OEA to ensure that committee structures and other consultative bodies referred to in workplace agreements are consistent with WR Act requirements, particularly in regard to prohibited content.
How should the requirement for direct relationships with employees be satisfied in the context of making and negotiating collective (union or employee) agreements? In particular, would management-initiated, regular and genuinely open consultative meetings with all staff, including at Faculty/School level, supplemented by the opportunity of staff to comment directly on proposals and drafts, satisfy this test?
Yes. However, where there is staff union involvement in negotiations there must also be employee representation. The method for electing, nominating or selecting employee representatives is a matter for each HEP to determine, provided that where there is staff union representation, these processes give equal standing and opportunity to employee representatives.
Where, for the purposes of the “direct relationships with employees” test, it is proposed to have employee representatives sit on consultative committees etc, are such representatives to be selected by management or chosen by employees?
The method for electing, nominating or selecting employee representatives is a matter for each HEP to determine. To be consistent with the HEWRRs, however, any method providing for employee representatives on committees should be subject to the choice of employees rather than a third party, such as a union.
Do the HEWRRs require all consultative committees to include a staff union representative?
No. The composition of all consultative committees is a matter for each HEP. However, where a committee includes staff union representatives, the committee must also include employee representatives. The method for electing, nominating or selecting employee representatives is a matter for each HEP to determine. However, any method needs to apply to all employee representatives in the same manner and there can be no preference given to staff union representatives over employee representatives.
The composition of consultative committees provided for in workplace agreements must also be consistent with the WR Act and HEPs should seek advice from the OEA to ensure that committee structures and other consultative bodies referred to in workplace agreements are consistent with WR Act requirements, particularly in regard to prohibited content.
It has been suggested that a Staff Agreement and Implementation Committee (SAILC) be established to perform various duties 'as assigned to it by the Enterprise Agreement'. The SAILC would comprise two staff members nominated by the union and two directly elected staff members, but no management members. One of the functions of the SAILC would be to consider matters that relate to staff terms and conditions such as grievance procedures, workloads and leave entitlements that are to be taken out of the EA and put into HEP policy. For such policies to be approved or amended it would be necessary for the HEP to gain the agreement of the SAILC. Monitoring and implementation roles for the SAILC have also been proposed. For a range of matters, the committee will make a final determination. Would this offend the HEWRRs?
The HEWRRs state that the HEP’s workplace agreements, policies and practices are not to inhibit the capacity of the HEP and its employees to respond to changing circumstances. The HEP’s workplace agreements, policies and practices must not limit or restrict the HEP’s ability to make decisions and implement change in respect of course offering and associated staffing requirements. The HEWRRs also require that workplace agreements, policies and practices support organisational productivity and performance.
A provision in an agreement that requires the HEP to gain the agreement of a committee, or any such body, however constituted in a HEP’s agreements, policies or practices, to approve or amend a workplace policy would be inconsistent with the HEWRRs if the HEP does not have the ability to make the final determination. A requirement for the HEP to gain the approval of a committee before being able to respond to or implement change would inhibit the HEP’s ability to make decisions and as such would be unlikely to support organisational productivity.
In addition, the HEWRRs require that a HEP’s workplace agreements, policies and practices provide for direct consultation between employees and the HEP on workplace relations and human resources matters. A committee like the one described above would appear to be inconsistent with this requirement as it does not provide for direct consultation between the HEP and its employees.
Furthermore, committees provided for in workplace agreements must be set up in such a way that they are consistent with the WR Act. HEPs should seek advice from the OEA to ensure that committee structures and other consultative bodies referred to in workplace agreements are consistent with WR Act requirements, particularly in regard to prohibited content.
Can you confirm previous advice that the requirement for direct relationships with employees can be fulfilled by including employee representatives as well as staff union representatives on relevant consultative, dispute and other committees established under the workplace agreement?
Employee representatives on consultative committees must represent all staff. The method for electing, nominating or selecting staff representatives is a matter for each HEP to determine.
The composition of committees provided for in workplace agreements must also be consistent with the WR Act and HEPs should seek advice from the OEA to ensure that committee structures and other consultative bodies referred to in workplace agreements are consistent with WR Act requirements, particularly in regard to prohibited content.