Section 786 — Fair Work Act 2009: FWC may make orders where failure to notify or consult registered employee associations about terminations

(1) The FWC may make an order under subsection 787(1) if it is satisfied that: (a) an employer has decided to terminate the employment of 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons; and (b) the employer has not complied with subsection (2) (which deals with notifying relevant registered employee associations) or subsection (3) (which deals with consulting relevant registered employee associations); and (c) the employer could reasonably be expected to have known, when he or she made the decision, that one or more of the employees were members of a registered employee association. Notifying relevant registered employee associations (2) An employer complies with this subsection if: (a) the employer notifies each registered employee association of which any of the employees was a member, and that was entitled to represent the industrial interests of that member, of the following: (i) the proposed terminations and the reasons for them; (ii) the number and categories of employees likely to be affected; (iii) the time when, or the period over which, the employer intends to carry out the terminations; and (b) the notice is given: (i) as soon as practicable after making the decision; and (ii) before terminating an employee’s employment in accordance with the decision. Consulting relevant registered employee associations (3) An employer complies with this subsection if: (a) the employer gives each registered employee association of which any of the employees was a member, and that was entitled to represent the industrial interests of that member, an opportunity to consult the employer on: (i) measures to avert or minimise the proposed terminations; and (ii) measures (such as finding alternative employment) to mitigate the adverse effects of the proposed terminations; and (b) the opportunity is given: (i) as soon as practicable after making the decision; and (ii) before terminating an employee’s employment in accordance with the decision.