Brett Feltham, Gadens
Brett Feltham, Gadens

The obligation to notify and consult with employees is the element of restructuring employers most commonly struggle to comply with, according to a workplace law specialist.

"My experience is that often, employers do not get this part right," Gadens partner Brett Feltham tells an HR Daily Premium webcast.

"It's really important to go back to an award, if you've got one, or an enterprise agreement, to work through what must you do in those circumstances."

It's best practice to notify employees in writing of proposed changes and then initiate a discussion to move into the consultation phase, Feltham says.

What changes will be introduced, the effect those changes are likely to have on employees, and any measures to avert or mitigate those adverse effects should be discussed, he adds.

"There's an obligation to take into account what's said [in response] and give prompt consideration to it. That does not mean, however, that an employer needs to accept all or any suggestions made by an employee or their representative.

"Consultation is not necessarily about accepting everything that the employee says, but rather it's about taking that into account, and if there are reasonable suggestions put as to how to avert or mitigate some of the adverse effects of these changes, then those things should certainly be taken on board."

Discussions should start as soon as practicable after a definite restructuring decision has been made, but employers are not required to disclose confidential information, Feltham says.

"If for example, the restructure is resulting out of a proposed acquisition or merger, let's say, and the acquisition or merger itself is confidential, then as part of this process and in order to meet those notification and consultation obligations you are not required to disclose confidential information."

Employers should, however, share that information when it moves from being confidential to being in the public arena, he notes.

Notification and consultation was also the hottest topic during the webinar's live Q&A session. In the excerpt below, listen to a selection of answers to questions about consultation timeframes, confidentiality, employer responses and more.

The full webcast and Q&A session also discusses redundancy selection criteria, employee entitlements, making redeployment offers and more (upgrade here for access if you're not a premium member).