It is often argued that an employer will not discharge its obligation to engage in genuine consultation about a change affecting its employees if it has already decided to make the change.

This was explored by the Fair Work Commission (FWC) in AMWU and AWU v ASC Pty Ltd (2022). In this decision, the employer introduced a COVID policy that required employees and contractors to be double-vaccinated before entering a particular worksite in South Australia. The unions opposed the vaccination mandate and initiated dispute proceedings in the FWC.

The employer did not initially give any sign that it would not proceed with its decision to implement the policy. The unions argued that the employer had already made the decision to implement the policy, and that the consultation process had not been capable of affecting that decision.

The FWC considered whether the employer’s predisposition to a particular decision meant the consultation process had been a tokenistic box-checking exercise.

The FWC stated that consultation processes “should be meaningful and engaged in before an irreversible decision has been made,” and that the obligation to consult “will only be met where a party has a real opportunity to influence the decisionmaker”. The FWC acknowledged that the limited scope of the consultation suggested it was little more than an opportunity for employees to dissuade the employer from doing what it had already decided to do.

The FWC held that “having a predisposed view to a particular course rather than simply opening discussion on neutral options is not, of itself, a failure to consult, provided the necessary ingredients exist that meet the minimum consultation obligations”. The FWC stressed the importance of “context and the nature and circumstances of each case”, concluding that “what will amount to ‘consultation’ has an inherent flexibility”.

The decision demonstrates it is sufficient, for the purposes of consultation requirements, that the process has the “capacity to inform and impact the employer’s view on the appropriateness of its decision and whether to proceed with that decision”.

Holding a predisposition towards a particular course of action did not mean that the consultation was not genuine or meaningful. What mattered was the employer’s conduct during the consultation period – the fact that it genuinely engaged with stakeholders throughout the process and sought to address their concerns. This demonstrated that the consultation process had been capable of informing and impacting the employer’s view notwithstanding its predisposition to implement the policy.

In this case, the employer demonstrated that its predisposition was accompanied by a “desire to consult and receive feedback”. It showed that it “did open its mind to whether to proceed” to implement elements of the policy, and had on at least two occasions reviewed its position. On this basis, the FWC was satisfied that the employer’s pre-consultation decision had not been “irrevocable”.

Find out about your consultation obligations in the Employment Law Practical Handbook chapter, Consultation.