Section 205 — Fair Work Act 2009: Enterprise agreements to include a consultation term etc.

Consultation term must be included in an enterprise agreement (1) An enterprise agreement must include a term (a consultation term) that: (a) requires the employer or employers to which the agreement applies to consult the employees to whom the agreement applies about: (i) a major workplace change that is likely to have a significant effect on the employees; or (ii) a change to their regular roster or ordinary hours of work; and (b) allows for the representation of those employees for the purposes of that consultation. (1A) For a change to the employees’ regular roster or ordinary hours of work, the term must require the employer: (a) to provide information to the employees about the change; and (b) to invite the employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities); and (c) to consider any views given by the employees about the impact of the change. Model consultation term (2) If an enterprise agreement does not include a consultation term, or if the consultation term is an objectionable emergency management term, the model consultation term is taken to be a term of the agreement. (3) The FWC must determine the model consultation term for enterprise agreements. (4) In determining the model consultation term, the FWC must: (a) ensure that the model term is consistent with the requirements set out in subsections (1) and (1A); and (b) take into account the following matters: (i) whether the model term is broadly consistent with comparable terms in modern awards; (ii) best practice workplace relations as determined by the FWC; (iii) whether all persons and bodies have had a reasonable opportunity to be heard and make submissions to the FWC for consideration in determining the model term; (iv) whether the model term would, or would be likely to have, the effect referred to in paragraph 195A(1)(a), (b), (c) or (d) (objectionable emergency management terms); (v) the object of this Act (see section 3), and the objects of this Part (see section 171); (vi) any other matters the FWC considers relevant. Note 1: The FWC must be constituted by a Full Bench to make the model consultation term (see subsection 616(4A)). Note 2: For the variation of a determination, see subsection 33(3) of the Acts Interpretation Act 1901. (5) To avoid doubt, subsections (1) and (1A) do not limit the matters the model consultation term may deal with. (6) A determination under subsection (3) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination.