Balancing Safety and Fairness: The Fair Work Commission’s View on Consultation in Policy Changes 

| February 11, 2025

A Fair Work Commission (FWC) decision in Australian Manufacturing Workers’ Union v Opal Packaging Australia Pty Ltd [2024] highlights the importance of proper consultation in workplace health and safety matters.

This case serves as a reminder that employers must follow consultation obligations outlined in the Fair Work Act 2009 (Cth) and the Model Work Health and Safety (WHS) Act when implementing changes to workplace policies.

Failure to consult appropriately can render policy changes unreasonable, even if they are otherwise lawful.

Background of the Case

The case arose from a dispute between Opal Packaging Australia Pty Ltd and the Australian Manufacturing Workers’ Union (AMWU) regarding changes to Opal’s Alcohol and Other Drugs (AOD) Policy. The proposed changes included: 

✔ Removal of Breath Alcohol Concentration (BAC) self-testing units

✔ Alterations to random drug and alcohol testing procedures

✔ Updates to how non-negative drug test results for prescription and over-the-counter medications were managed

The AMWU argued that Opal failed to meet consultation requirements under their 2022 Enterprise Agreement and the Model WHS Act. The union claimed that workers and their representatives were not provided with adequate information or a genuine opportunity to influence the proposed changes. 

When mediation did not resolve the dispute, the matter proceeded to arbitration under Section 739 of the Fair Work Act. 

Findings of the Fair Work Commission 

Deputy President Masson of the FWC assessed the case based on two key issues:

1. Consultation Obligations Under the Model WHS Act

The Model WHS Act requires consultation on changes that may impact workplace health and safety. Consultation involves sharing relevant information, seeking feedback, and considering this feedback in decision-making. The FWC found Opal’s consultation process was flawed because: 

• Key documents (e.g., risk assessments, cost-benefit analyses) were not shared before feedback was requested. 
• Concerns raised by employees were not adequately addressed. 
• A marked-up draft of the updated policy was provided too late in the process.

2. Reasonableness of the Policy Changes

Workplace policy changes must be lawful and reasonable. For policy changes, reasonableness depends on following proper processes and considering operational needs. While some of Opal’s proposed changes were justified, the failure to consult properly meant the implementation process was unreasonable. 

Key Takeaways for Employers

This decision reinforces the importance of genuine consultation when making policy changes that impact employees. Employers should take the following steps to meet consultation requirements and improve workplace relationships:

1. Define Clear Consultation Protocols

Clearly define processes for consulting employees on workplace policies, ensuring these processes comply with the relevant legislation and any other industrial instrument that may apply to your workforce. Share relevant documents early and provide time for meaningful feedback. 

2. Record and Communicate Decisions

Maintain accurate records of consultation activities and decisions. Use these to demonstrate compliance with legal obligations and ensure employees understand the changes. 

3. Respond to Employee Feedback Transparently 

Address questions and concerns raised during consultations. Show how feedback has been considered and incorporated into final decisions to promote transparency. 

Even if changes are lawful, they may still be considered unreasonable if proper consultation processes are not followed.

At IRiQ Law, we can assist with developing workplace policies, facilitating workplace mediation, and helping employers remain compliant with their obligations under relevant employment legislation. Contact us to learn how we can support your business.