Department of Health Enterprise Agreement 2016-2019

Part J - Consultation and dispute resolution

Page last updated: 28 January 2016

Employee/workplace participation

Employee representation

  1. Employees may be assisted, accompanied and represented by another person, including an employee representative, in processes relating to unsatisfactory performance, excess status, and in the dispute resolution procedures outlined below.
  2. Employees will inform their immediate manager and/or relevant level of management prior to any discussions where they choose to be represented.

National Staff Participation Forum (NSPF)

  1. The NSPF will operate as the peak employee consultation body within the department, and includes representatives of the department’s employee diversity networks. The terms of reference of the NSPF will be agreed in consultation with employees.
  2. The department will consult with, and take into account the views of, the NSPF on issues relating to the implementation and operation of this Agreement, that is, issues affecting the employment conditions of employees. The department will allow a reasonable period for the NSPF to consider any such issues.
  3. The Secretary will provide relevant information to the employees or their representatives in a timely manner.

Consultation on major change

  1. This term applies if the Secretary:
    1. has made a definite decision to introduce a major change to production, program, organisation, structure or technology in relation to the department that is likely to have a significant effect on employees, or
    2. proposes to introduce a change to the regular roster or ordinary hours of work of employees.
  2. For a major change referred to in clause 303:
    1. the Secretary must notify the relevant employees of the decision to introduce the major change, and
    2. clauses 305 to 311 apply.
  3. The relevant employees may appoint a representative for the purposes of the procedures in this term.
  4. If:
    1. relevant employees appoint a representative for the purposes of consultation, and
    2. the employees advise the Secretary of the identity of the representative,

    the Secretary must recognise the representative.

  5. As soon as practicable after making its decision, the Secretary must:
    1. Discuss with the relevant employees:
      1. the introduction of the change, and
      2. the effect the change is likely to have on the employees, and
      3. measures the Secretary is taking to avert or mitigate the adverse effect of the change on the employees, and
    2. for the purposes of the discussion – provide, in writing, to the relevant employees:
      1. all relevant information about the change including the nature of the change proposed, and
      2. information about the expected effects of the change on the employees, and
      3. any other matters likely to affect the employees.
  6. However, the Secretary is not required to disclose confidential or commercially-sensitive information to the relevant employees.
  7. The Secretary must give prompt and genuine consideration to matters raised about the major change by the relevant employees.
  8. If a term in this agreement provides for a major change to production, program, organisation, structure or technology in relation to the department, the requirements set out in clause 304 a) and clauses 305 and 307 are taken not to apply.
  9. In this term, a major change is likely to have a significant effect on employees if it results in:
    1. the termination of the employment of employees, or
    2. major change to the composition, operation or size of the department’s workforce or to the skills required of employees, or
    3. the elimination or diminution of job opportunities (including opportunities for promotion or tenure), or
    4. the alteration of hours of work, or
    5. the need to retrain employees, or
    6. the need to relocate employees to another workplace, or
    7. the restructuring of jobs.

Change to regular roster or ordinary hours of work

  1. For a change referred to in clause 303 a):
    1. the Secretary must notify the relevant employees of the decision to introduce major change, and
    2. clauses 313 to 317 apply.
  2. The relevant employees may appoint a representative for the purposes of the procedures in this term.
  3. If:
    1. relevant employees appoint a representative for the purposes of consultation, and
    2. the employees advise the Secretary of the identity of the representative,

    the Secretary must recognise the representative.

  4. As soon as practicable after proposing to introduce the change, the Secretary must:
    1. discuss with the relevant employees the introduction of the change, and
    2. for the purposes of the discussion, provide to the relevant employees:
      1. all relevant information about the change, including the nature of the change, and
      2. information about what the Secretary reasonably believes will be the effects of the change on the employees, and
      3. information about any other matters that the Secretary reasonably believes are likely to affect the employees, and
    3. invite the relevant employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities).
  5. However, the Secretary is not required to disclose confidential or commercially-sensitive information to the relevant employees.
  6. The Secretary must give prompt and genuine consideration to matters raised about the change by the relevant employees.
  7. In this term relevant employees means the employees who may be affected by a change referred to in clause 303.

Dispute Resolution Procedures

  1. If a dispute relates to:
    1. a matter arising under the agreement ,or
    2. the NES,

    this term sets out procedures to settle the dispute.

  2. An employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this term.
  3. In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the employee or employees and relevant supervisors and/or management.
  4. If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to Fair Work Commission.
  5. The Fair Work Commission may deal with the dispute in two stages:
    1. the Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation, and
    2. if the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then:
      1. arbitrate the dispute, and
      2. make a determination that is binding on the parties.

    Note: If Fair Work Commission arbitrates the dispute, it may also use the powers that are available to it under the FW Act.

    A decision that Fair Work Commission makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the FW Act. Therefore, an appeal may be made against the decision.

  6. While the parties are trying to resolve the dispute using the procedures in this term:
    1. an employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health or safety, and
    2. an employee must comply with a direction given by the employer to perform other available work at the same workplace, or at another workplace, unless:
      1. the work is not safe, or
      2. applicable work health and safety legislation would not permit the work to be performed, or
      3. the work is not appropriate for the employee to perform, or
      4. there are other reasonable grounds for the employee to refuse to comply with the direction.
  7. The parties to the dispute agree to be bound by a decision made by Fair Work Commission in accordance with this term.