10. Consultation
Principles
10.1: 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.
10.2: The ATO recognises:
- the importance of inclusive and respectful consultative arrangements
- employees and the relevant union(s) should have a genuine opportunity to influence decisions
- the nature and extent of consultation will vary depending on the proposed change and the likely impact on employees. Consultation on agency policies may occur over at least 2 weeks, whereas a major change is likely to require a more extensive consultation process
- consultation with employees and relevant unions(s) on workplace matters that significantly affect or materially impact them is sound management practice, and
- the benefits of employee and union involvement and the right of employees to be represented by their union.
10.3: Genuine and effective consultation involves:
- providing employees and the relevant union(s) with a genuine opportunity to influence the decision prior to a decision being made
- providing all relevant information to employees and the relevant union(s) in a timely manner to support consideration of the issues
- considering feedback from employees and the relevant union(s) in the decision-making process, and
- 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
10.4: Consultation is required in relation to:
- changes to work practices which materially alter how an employee carries out their work
- changes to or the introduction of policies or guidelines relevant to workplace matters (unless the changes are minor or procedural)
- major change that is likely to have a significant effect on employees
- implementation of decisions that significantly affect employees
- changes to employees’ regular roster or ordinary hours of work (subject to any other relevant provisions in this Agreement), and
- other workplace matters that are likely to significantly or materially impact employees.
10.5: The ATO, 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 the ATO. 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
10.6: This clause applies if the ATO:
- 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
- proposes to introduce a change to the regular roster or ordinary hours of work of employees.
Representation
10.7: 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.
10.8: The ATO must recognise the representative if:
- a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation, and
- the employee or employees advise the employer of the identity of the representative.
Major change
10.9: In this clause, a major change is likely to have a significant effect on employees if it results in, for example:
- the termination of the employment of employees, or
- major change to the composition, operation or size of the employer’s workforce or to the skills required of employees, or
- the elimination or diminution of job opportunities (including opportunities for promotion or tenure), or
- the alteration of hours of work, or
- the need to retrain employees, or
- the need to relocate employees to another workplace, or
- the restructuring of jobs.
10.10: The following additional consultation requirements in subclauses 10.11 to 10.17 apply to a proposal to introduce a major change referred to in subclause 10.4(c).
10.11: Consultation with employees and the relevant union(s) and/or recognised representatives will occur prior to a decision being made, subject to subclause 10.5.
10.12: Where practicable, an ATO 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.
10.13: The ATO must notify employees and relevant union(s) and/or recognised representatives of the proposal to introduce the major change as soon as practicable.
10.14: As soon as practicable after proposing the change, or notifying of the change in circumstances described at subclause 10.5, the ATO must:
- discuss with affected employees and relevant union(s) and/or other recognised representatives
- the proposed change
- the effect the proposed change is likely to have on the employees
- proposed measures to avert or mitigate the adverse effect of the proposed change on the employees, and
- for the purposes of the discussion – provide, in writing, to employees and the relevant union(s) and/or other recognised representatives
- all relevant information about the proposed change, including the nature of the change proposed
- information about the expected effects of the proposed change on the employees, and
- any other matters likely to affect the employees.
- discuss with employees and the relevant union(s) and/or other recognised representatives
- the proposed introduction of the change, and
- for the purposes of the discussion – provide to the employees and relevant union(s) and/or other recognised representatives
- all relevant information about the proposed change, including the nature of the proposed change
- information about what the employer reasonably believes will be the effects of the proposed change on the employees, and
- information about any other matters that the employer reasonably believes are likely to affect the employees, and
- 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, the ATO is not required to disclose confidential or commercially sensitive information to the relevant employees and the relevant union(s) and/or other recognised representatives.
- meet, generally in person, at least 3 times per year
- establish and amend Terms of Reference by agreement
- have the number of employee representatives being equal to or greater than the number of management representatives
- have the Commissioner (or DC ATOP as proxy) as the Chair, and
- allow for each union covered by this Agreement to have 3 representatives.
- be maintained and amended under the Terms of Reference as determined by each forum
- the Terms of Reference for each forum will identify the Chair
- comprise equal numbers of union representatives covered by this Agreement balanced by an appropriate number of ATO senior Group representatives, and
- have the overall numbers directly related to the size of the group.
- the legitimate role of unions in the workplace
- that employees are free to choose whether or not to join a union, and
- irrespective of that choice employees will not be disadvantaged or discriminated against in respect of their employment under this Agreement.
- a review of employment action, where the matter is not one arising under the Agreement
- an employee's fitness for duty
- an employee's workplace rehabilitation
- an alleged breach of the Code of Conduct
- a complaint or 'public interest disclosure, and
- the dispute settlement procedures.
- provide information, consult with and seek feedback from employees in the workplace on workplace matters
- consult with other delegates and union officials, and get advice and assistance from union officials
- speak on behalf of their members in the workplace as well as represent the interests of members to the employer and industrial tribunals
- represent members at relevant union forums, consultative committees or bargaining, and
- be treated fairly and to perform their role as workplace delegates without any discrimination in their employment.
- provide union delegates with reasonable access to ATO facilities and resources, including for paid or unpaid meetings between employees and their unions and to communicate with union officials. Where, in a particular ATO site, agreement cannot be reached about a suitable room being available, workplace delegates will be able to use tea and lunch rooms for meetings
- advise union delegates and other union officials of the ATO facilities and resources available for their use, which may include telephone, photocopying, internet, and email
- allow reasonable official union communication appropriate to the ATO from union delegates with employees, including the right to email employees in their workplace to provide information and seek feedback, subject to individual employees exercising a right to 'opt out', and through intranet pages and notice boards designated for their use. 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 the ATO vetoing reasonable communications
- provide access to new employees as part of induction
- provide reasonable access to union delegates to attend appropriate paid time training in workplace relations matters, during normal working hours. This would ordinarily be, but not limited to, 3 days per year
- facilitate the right to consultation, and access to relevant information about the workplace and the agency
- provide reasonable paid time off to represent union members in the agency at relevant union forums, and
- provide reasonable paid time during normal working hours to consult with other delegates and union officials in the workplace, receive advice and assistance from union staff and officials in the workplace and to provide information to and seek feedback from employees on workplace relations matters at the agency during normal working hours.
10.15: The ATO 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.
10.16: However, the ATO is not required to disclose confidential or commercially sensitive information to employees and the relevant union(s) and/or other recognised representatives.
10.17: If a term in this Agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the ATO, the requirements set out in subclauses 10.11 to 10.15 are taken not to apply.
Change to regular roster or ordinary hours of work
10.18: The following additional consultation requirements in subclause 10.19 to 10.22 apply to a proposal to introduce a change referred to in subclause 10.4(e).
10.19: The ATO must notify affected employees and the relevant union(s) and/or other recognised representatives of the proposed change.
10.20: As soon as practicable after proposing to introduce the change, the ATO must:
10.21: The ATO 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
10.22: Nothing in this term restricts or limits the ability of a designated emergency management body to undertake activities provided at section 195A(1) of the FW Act.
APS consultative committee
10.23: The Commissioner 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.
11. Consultation forum
11.1: There will be a National Consultative Forum (NCF) to facilitate communication and consultation on ATO-wide employment and workplace relations matters.
11.2: The NCF will:
11.3: There will be Group Consultative Forums which will:
11.4: Where agreement cannot be reached on matters before the Consultative Forums, the Commissioner will make a final decision.
11.5: Where employee representatives are involved in National or Group consultative forums, they will be provided with a suitable facilities package to give them support.
12. Freedom of association and employee representation
12.1: The ATO recognises:
12.2: An employee may have an employee representative, who may be a union representative, to represent them in their industrial interests. The ATO and employee representative will deal with each other in good faith.
12.3: The employee’s right to be represented under this clause will also apply in relation to:
12.4: The role of employee representatives, including union delegates and other
non-union employee representatives, is to be respected and facilitated.
13. Delegates’ rights
13.1: 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 the ATO.
13.2: The role of union delegates is to be respected and supported.
13.3: The ATO and union delegates will work together in good faith, respectfully and collaboratively.
Supporting the role of union delegates
13.4: The ATO respects the role of union delegates to:
13.5: In any individual employee workplace matter arising under this Agreement, an employee may have an employee representative, which may be a union representative, assist or represent them. To avoid doubt, this assistance includes acting as an advocate. All participants will treat each other with respect and courtesy and all participants will deal with the employee's representative in good faith.
13.6: The ATO 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.
13.7: 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.
13.8: The period of release will extend to the time of discussions, meetings or interviews with management plus a reasonable time to assist the other employee before and after the discussion, meetings or interview. Nothing in this clause should be read as providing or enhancing any right of entry for the employee representative to enter the ATO.
13.9: To support the role of union delegates, the ATO will, subject to legislative and operational requirements, including privacy and security requirements:
13.10: 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 ATO before speaking publicly in that capacity, subject to the APS Code of Conduct and legislative requirements.
13.11: In exercising their rights, workplace delegates and unions will consider operational issues, ATO policies and guidelines and the likely affect on the efficient operation of the ATO and the provision of services by the Commonwealth.
13.12: For ATO employees, time spent on being a representative under clause 12 of the Agreement is time on duty. Release from duty will be subject to operational requirements and prior approval from the representative's manager.