Section 10 – Consultation, representation and dispute resolution

Consultation

Principles

1. Genuine and effective consultation with employees and the relevant union(s), taking into account the diverse needs of employees, fosters a positive and inclusive workplace, enabling the views of employees to be considered.
2. Treasury recognises:
   1. the importance of inclusive and respectful consultative arrangements;
   2. employees and the relevant union(s) should have a genuine opportunity to influence decisions;
   3. the nature and extent of consultation will vary depending on the proposed change and the likely impact on employees. Consultation on Treasury policies may occur over at least 2 weeks, whereas a major change is likely to require a more extensive consultation process;
   4. consultation with employees and relevant unions(s) on workplace matters that significantly affect or materially impact them is sound management practice; and
   5. the benefits of employee and union involvement and the right of employees to be represented by their union.
3. Genuine and effective consultation involves:
   1. providing employees and the relevant union(s) with a genuine opportunity to influence the decision prior to a decision being made;
   2. providing all relevant information to employees and the relevant union(s) in a timely manner to support consideration of the issues;
   3. considering feedback from employees and the relevant union(s) in the decision‑making process; and
   4. advising employees and the relevant union(s) of the outcome of the process, including how their feedback was considered in the decision‑making process.

When consultation is required

1. Consultation is required in relation to:
   1. changes to work practices which materially alter how an employee carries out their work;
   2. changes to or the introduction of policies or guidelines relevant to workplace matters (unless the changes are minor or procedural);
   3. major change that is likely to have a significant effect on employees;
   4. implementation of decisions that significantly affect employees;
   5. changes to employees’ regular roster or ordinary hours of work (subject to any other relevant provisions in this agreement); and
   6. other workplace matters that are likely to significantly or materially impact employees.
2. Treasury, employees and the relevant union(s) recognise that consultation prior to a decision may not be practicable where a decision is made by Government or is required due to matters beyond the reasonable control of Treasury. In these circumstances, consultation regarding the implementation of the decision will occur as early as is reasonably practicable.

Provisions for consultation on major change and introduction of a change to regular roster or ordinary hours of work of employees

1. This clause applies if Treasury:
   1. proposes to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the employees; or
   2. proposes to introduce a change to the regular roster or ordinary hours of work of employees.

Representation

1. Employees may appoint a representative for the purposes of the procedures in this clause. A representative for the purpose of this clause may be a union representative.
2. Treasury must recognise the representative if:
   1. a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and
   2. the employee or employees advise the employer of the identity of the representative.

Major change

1. In this clause, a major change is likely to have a significant effect on employees if it results in, for example:
   1. the termination of the employment of employees;
   2. major change to the composition, operation or size of the employer’s workforce or to the skills required of employees;
   3. the elimination or diminution of job opportunities (including opportunities for promotion or tenure);
   4. the alteration of hours of work;
   5. the need to retrain employees;
   6. the need to relocate employees to another workplace; or
   7. the restructuring of jobs.
2. The following additional consultation requirements in clauses 408 to 414 apply to a proposal to introduce a major change referred to in clause 401.3.
3. Consultation with employees and the relevant union(s) and/or recognised representatives will occur prior to a decision being made, subject to clause 402.
4. Where practicable, a Treasury change manager or a primary point of contact will be appointed and their details provided to employees and the relevant union(s) and/or their recognised representatives.
5. Treasury must notify employees and relevant union(s) and/or recognised representatives of the proposal to introduce the major change as soon as practicable.
6. As soon as practicable after proposing the change, or notifying of the change in circumstances described at clause 402, Treasury must:
   1. discuss with affected employees and relevant union(s) and/or other recognised representatives:
      1. the proposed change;
         1. the effect the proposed change is likely to have on the employees; and
         2. proposed measures to avert or mitigate the adverse effect of the proposed change on the employees; and
      2. for the purposes of the discussion – provide, in writing, to employees and the relevant union(s) and/or other recognised representatives:
         1. all relevant information about the proposed change, including the nature of the change proposed;
         2. information about the expected effects of the proposed change on the employees; and
         3. any other matters likely to affect the employees.
7. Treasury must give prompt and genuine consideration to matters raised about the major change by employees and the relevant union(s) and/or other recognised representatives.
8. However, Treasury is not required to disclose confidential or commercially sensitive information to employees and the relevant union(s) and/or other recognised representatives.
9. If a term in this agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of Treasury, the requirements set out in clauses 408 to 412 are taken not to apply.

Change to regular roster or ordinary hours of work

1. The following additional consultation requirements in clauses 416 to 418 apply to a proposal to introduce a change referred to in clause 401.5.
2. Treasury must notify affected employees and the relevant union(s) and/or other recognised representatives of the proposed change.
3. As soon as practicable after proposing to introduce the change, Treasury must:
   1. discuss with employees and the relevant union(s) and/or other recognised representatives the proposed introduction of the change;
   2. for the purposes of the discussion – provide to the employees and relevant union(s) and/or other recognised representatives:
      1. all relevant information about the proposed change, including the nature of the proposed change;
      2. information about what the employer reasonably believes will be the effects of the proposed change on the employees; and
      3. information about any other matters that the employer reasonably believes are likely to affect the employees; and
   3. invite employees and the relevant union(s) and/or other recognised representatives to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities). However, Treasury is not required to disclose confidential or commercially sensitive information to the relevant employees and the relevant union(s) and/or other recognised representatives.
4. Treasury must give prompt and genuine consideration to matters raised about the proposed change by the employees and the relevant union(s) and/or other recognised representatives.

Interaction with emergency management activities

1. Nothing in this term restricts or limits the ability of a designated emergency management body to undertake activities provided at subsection 195A(1) of the Fair Work Act 2009.

Workplace Relations Committee

1. Treasury has a Workplace Relations Committee (WRC).
2. Treasury will consult with, and take into account the views of, the WRC on issues surrounding the implementation and operation of this agreement, as these affect the employment conditions of employees. Treasury will allow a reasonable period for the WRC to consider issues.
3. The WRC will operate subject to an agreed terms of reference and structure for the term of this agreement. Representation on the committee will be in accordance with the terms of reference.
4. Treasury will continue to undertake consultation with employees outside the WRC forum.

APS consultative committee

1. The Secretary will support the operation of the APS consultative committee to the extent possible. This includes providing information requested by the Australian Public Service Commission to support the operation of the APS consultative committee, subject to legislative requirements.

Dispute resolution

1. If a dispute relates to:
   1. a matter arising under this agreement; or
   2. the NES;

   this term sets out procedures to settle the dispute.

2. An employee or union who is covered by this agreement may initiate and/or be a party to a dispute under this term.
3. An employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this term. Representatives will be recognised and dealt with in good faith.
4. Parties to the dispute must attempt to resolve the dispute at the workplace level, by discussion between the employee or employees and relevant managers. Parties to the dispute will notify higher level managers to assist in the resolution of the dispute. Parties will give genuine consideration to proposals to resolve the dispute.
5. If a dispute about a matter arising under this agreement is unable to be resolved at the workplace level, and all appropriate steps under clause 428 have been taken, a party to the dispute may refer the dispute to the Fair Work Commission.
6. The Fair Work Commission may deal with the dispute in 2 stages:
   1. the Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
   2. if the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then:
      1. arbitrate the dispute; and
      2. make a determination that is binding on the parties.

Note: If the Fair Work Commission arbitrates the dispute, it may also use the powers that are available to it under the Fair Work Act 2009. A decision that the Fair Work Commission makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the Act. Therefore, an appeal may be made against the decision.

1. While the parties are attempting to resolve the dispute using the procedures in this term:
   1. an employee must continue to perform their work as they would normally in accordance with established custom and practice at Treasury that existed immediately prior to the dispute arising unless they have a reasonable concern about an imminent risk to their health or safety; and
   2. subject to clause 431.1 an employee must comply with a direction given by the employer to perform other available work at the same workplace, or at another workplace, unless:
      1. the work is not safe;
      2. applicable work health and safety legislation would not permit the work to be performed;
      3. the work is not appropriate for the employee to perform; or
      4. there are other reasonable grounds for the employee to refuse to comply with the direction.
2. The parties to the dispute agree to be bound by a decision made by the Fair Work Commission in accordance with this term.
3. Any disputes arising under the Treasury Enterprise Agreement 2018–2021 or the NES that were formally notified under clause 8.1 of that agreement before the commencement of this agreement, that remain unresolved at the date of commencement of this agreement, will be progressed under the dispute resolution procedures in this agreement.

Leave of absence to attend proceedings

1. Where the provisions of clauses 425 to 429 have been complied with, and to assist in the resolution of the matter, the employee, and/or the union delegate or other employee representative referred to in clause 426, or employee required to provide evidence, will be granted paid time to attend dispute resolution processes and proceedings in the Fair Work Commission arising from referral of the matter in clause 429.

Delegates’ rights

1. Union delegates play an important and legitimate role in the workplace. This includes representing their members and supporting employee access to union officials, and providing employee views to Treasury.
2. The role of union delegates is to be respected and supported.
3. Treasury and union delegates will work together respectfully and collaboratively.

Supporting the role of union delegates

1. Treasury respects the role of union delegates to:
   1. provide information, consult with and seek feedback from employees in the workplace on workplace matters;
   2. consult with other delegates and union officials, and get advice and assistance from union officials;
   3. represent the interests of members to the employer and industrial tribunals; and
   4. represent members at relevant union forums, consultative committees or bargaining.
2. Treasury and union delegates recognise that undertaking the role of a union delegate is not the primary purpose of an employee’s engagement, and must work with and not unreasonably impact their regular duties. Honorary officials may request additional time and facilities from time to time.
3. Union delegates will be provided with reasonable paid time during their normal working hours to perform their union delegate role. The paid time provided should not result in disruption to critical services or operational requirements.
4. To support the role of union delegates, Treasury will, subject to legislative and operational requirements, including privacy and security requirements:
   1. provide union delegates with reasonable access to Treasury facilities and resources, including for paid or unpaid meetings between employees and their unions and to communicate with union officials;
   2. advise union delegates and other union officials of Treasury facilities and resources available for their use, which may include telephone, photocopying, internet, and email;
   3. allow reasonable official union communication appropriate to Treasury from union delegates with employees, including through email, intranet pages and notice boards. This may include providing a link to a union website for employees to access union information. Any assistance in facilitating email communications does not include Treasury vetoing reasonable communications;
   4. provide access to new employees as part of induction; and
   5. provide reasonable access to union delegates to attend appropriate paid time training in workplace relations matters, during normal working hours.
5. Where APS employees are elected as officials of a trade union or professional association, they are not required to seek permission from the workplace or Treasury before speaking publicly in that capacity, subject to the APS Code of Conduct and legislative requirements.