| FWC 1821
|FAIR WORK COMMISSION
Fair Work Act 2009
s.739 - Application to deal with a dispute
Australian Municipal, Administrative, Clerical and Services Union
Auscript Australasia Pty Ltd
MELBOURNE, 6 APRIL 2020
s.739 – dispute resolution – alleged dispute about failure to consult – orders sought.
 This decision concerns an application brought by the Australian Municipal, Administrative, Clerical and Services Union (the ASU) on behalf of its members under clause 3.6−Shared Responsibilities - Dispute Resolution of the Auscript Australasia Enterprise Agreement 2010 1 (the Agreement).
 The ASU alleges that Auscript Australasia Pty Ltd (Auscript) failed to consult in respect to employee redundancies and probable closure of site(s).
 Auscript records and produces transcript services for predominantly courts and tribunals across Australia. Auscript has two offices in Queensland (Brisbane and Eight Mile Plains), one in Melbourne, one in Sydney and one in Perth. Auscript has already downsized its Sydney office and closed its offices in Hobart and Adelaide earlier this year.
 On 20 January 2020, the ASU wrote to Auscript in relation to its announced decision to close or partially close the Sydney, Adelaide and Hobart offices without consultation with employees or the ASU.
 The dispute filed in the Commission seeks the Commission’s assistance so that Auscript meets its consultation obligations under the Agreement to its employees and the ASU.
 Prima facie, it appeared Auscript failed to comply with their consultation obligations prior to its closure of sites and its decision in making 25 employees redundant. The ASU and Auscript agreed to develop a joint Consultation and Communication Protocol (the Protocol) to avoid further potential failure in Auscript complying with their obligations. The detail of the Protocol was largely agreed between the parties when Auscript again determined to make further redundancies, this time in direct response to the impact of COVID-19 on their business.
 Auscript advises that the business has seen a reduction in transcript work of at least 60 percent, if not more, as courts and tribunals responded to restrictions imposed because of COVID-19. It asserts that this development together with its forecasts require it to make sudden decisions in order to maintain the viability of the business in Australia.
 Auscript maintain they have consulted with employees and the ASU.
 The ASU submit that the actions of Auscript fall short of their obligations contained in clause 3.6 of the Agreement and the newly developed joint Protocol.
 The ASU sought the urgent assistance of the Commission to avert further redundancies and to urge Auscript to consider as part of a consultation process a range of alternative options to redundancy.
 I held conferences with the parties on 30 and 31 March 2020 and I issued a Statement on 1 April 2020. Prior to the statement being issued, Auscript had agreed to provide the ASU and my chambers with a statement of its commitment to permanent jobs. However, Auscript did not deliver that statement within the agreed timeframe and consequently, the Statement I issued was agreed in principle between the parties but omits a record from Auscript expressing its commitment to permanent jobs. Auscripts’ record of commitment to permanent jobs did not arrive until after my Statement was issued.
 My Statement includes the following relevant paragraphs for this decision:
“ Prior to a statement being issued, Auscript agreed to provide a statement of its commitment to permanent jobs in its response to COVID-19 for incorporation in the statement. However, that statement was not filed within the agreed timeframe for its inclusion. I recommend that Auscript complete their statement as a matter of urgency for it to be included in any communication to its staff and the ASU, to alleviate confusion and anxiety in this time of uncertainty.
 Auscript also confirmed that employees in Melbourne were stood down with pay as part of their “consultation period” and expected that staff would inform them by Wednesday 1 April 2020, whether they opted for redundancy or had an alternative proposal to put to Auscript.
 Consequently, I recommended that Auscript urgently advise their Melbourne office employees that the consultation period has been extended to consider further options with redundancy as the final option, and therefore employees were to report to duty on Thursday 2 April 2020. To facilitate this, Auscript were to inform employees that they would be advised of any further developments in due course (possible Friday or Monday) and were to advise employees of their plans to manage safe distancing work arrangements for their return to duty.
 Following the conference on 31 March 2020, the parties agreed to the following:
1. Abstain from any compulsory redundancy until at least the parties finalise a strategy after considering all available options to preserve as many jobs as possible and communicate the identified options clearly to staff so they can make informed decisions concerning the options presented. The first agreed meeting of the parties is scheduled for 10.00am AEDT on 3 April 2020.
2. The parties did not agree to a conclusion date of the consultation phase as yet, however, did agree that the parties will need to regroup and consider new options as new challenges and options present themselves as Australia’s response to COVID-19 changes.
3. The parties also agreed to the final wording changes to the consultation and communication protocol. Auscript offered to finalise the wording and send the revised copy to the ASU and the Commission.
4. At the meeting of Friday 3 April 2020, the parties agreed to bring to the table any feedback from ASU members, and Auscript will share information concerning their financial modelling (without revealing financially sensitive material) to guide the parties on the urgency and viability of various options already suggested by both parties.
5. It was further agreed that the discussion on Friday 3 April 2020 between the parties was to include all of the following suggestions:
• Federal wage subsidies
• Utilisation of leave balances
• Reducing working hours
• Job share
• Stand down
• Leave without pay
• Ceasing external contractor reliance
• Taking leave at half pay
• Career breaks or leave of absence for professional development
• Voluntary redundancy, and
• Any other options” 2
 I conducted a further conference on 3 April 2020, after the parties met in the morning of the same day to work on a plan to respond to COVID-19 and preserve permanent positions.
 The ASU reported that there was no agreement between the parties, and it could get no further commitment from Auscript to engage in consultation.
 Auscript revealed during this conference that it would press ahead with closure of the Melbourne office and immediately inform all employees of their redundancy. It also revealed during this conference that it intended to immediately implement redundancies in Queensland.
 I issued directions for the filing of submissions. The ASU filed their submissions and a draft order for my consideration at 6.00pm Saturday 4 April 2020, and Auscript filed submissions in response at 6.00pm on Sunday 5 April 2020.
 In deciding whether to issue interim orders I need to be satisfied that I have the power to issue orders and that there is a serious question to be answered.
 Sections 589 and 590 of the Fair Work Act 2009 (Cth) (the Act) gives power to the Commission to inform itself and make procedural and interim decisions. The Commission has broad discretionary powers.
 The matter before me arises from the dispute settling procedure in the Agreement. The relevant clauses of the Agreement provide for a dispute to be settled at the workplace level, initially between the employee and employer, and if not resolved, it is escalated to more senior management. If the matter remains unresolved, either party may refer the matter to FWA (the former name of this Commission).
 In relation to the Commission’s jurisdiction the relevant clauses are:
“18.104.22.168 FWA will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
22.214.171.124 If FWA is unable to resolve the dispute at the first stage, FWA may then arbitrate the dispute and make a determination that is binding on the parties.
If FWA arbitrates the dispute, it may use the powers that are available to it under the Act.” 3
 Clause 3.6, Shared Responsibilities - Dispute Resolution of the Agreement, and in particular subclauses 3.6.1 and 3.6.2 provides that a dispute about a matter under this Agreement or the NES may, having first been progressed through discussions at the workplace level, be referred by either party to the Commission for arbitration if necessary.
 The ASU filed a dispute on 20 January 2020 pursuant to s.739 of the Act against Auscript in accordance with the dispute settlement clause. That dispute notification cited the clauses relevant to the dispute between the parties. The clauses cited included 3.2.8- Auscript responsibilities, 3.3- employee consultation and 9.1- termination- notice period. The background to the dispute was that Auscript determined to close or partially close sites and make employees redundant, allegedly without consultation consistent with the provisions of the Agreement.
 This dispute was still on foot per clause 126.96.36.199 as parties continued to participate in conciliation to develop measures to ensure Auscript consults with the ASU and employees where decisions to introduce major changes effecting employees arise.
 Prior to report back on the development of the agreed protocol, Auscript made a further decision to close the Melbourne site and make employees redundant in Melbourne, Brisbane and Eight Mile Plains.
 Further conciliations took place to resolve the dispute regarding alleged failure to consult by Auscript in relation to the latest decision for further redundancies. Notably, the alleged failure to consult pertains to the operation of clauses 3.2.8, 3.3 and 9.1 of the Agreement.
 I am satisfied that the dispute is over a matter arising under the Agreement, pertaining to the same provisions of the Agreement as set out in the ASU’s initiating application and of which the parties were in the process of developing a Protocol. I am satisfied the dispute has been brought before me in accordance with the requirements of the dispute settlement procedure of the Agreement and as such, jurisdiction exists for the Commission to use the powers that are available to it under the Act to arbitrate the matter in dispute.
 The dispute between the parties relates to the obligation to consult per clause 3.3 of the Agreement. The clause is not unusual, it is similar to clauses found in other enterprise agreements at the time of making this Agreement.
 The ASU submit conciliation per clause 188.8.131.52 has been exhausted and seeks resolution of the dispute per clause 184.108.40.206. Further, the ASU contends that Auscript failed to consult and it should cease and/or delay to immediately make redundant the 58 permanent employees to enable the parties to consult on measures to save employees from redundancy where possible, and to save Auscript’s future both during and after the COVID-19 crisis.
 The ASU submitted with their submissions a draft order for the Commission’s consideration.
 On 27 March 2020, Auscript held a meeting with staff to advise that it will need to implement drastic measures in response to the impact of COVID-19. It advised employees that they should consider four proposed options (closure of offices, voluntary redundancy, job share, or reduced hours of work) and they should communicate with management by 1 April regarding the four options or any other alternatives they may have. Auscript provided staff with correspondence following the meeting of 27 March 2020 titled “consultation about proposed workplace changes”. 4 Auscript submits it explained to employees the reason was the decline in work and it also advised that it had stopped providing work to casuals and contractors. Auscript submits that staff received information on their individual entitlements.
 The ASU were confidentially advised on 25 or 26 March 2020, by telephone that offices will close, and redundancies would take place. The parties did not meet, nor was there any correspondence from Auscript to the ASU. The detail of the planned closures and spread of redundancies was not fully disclosed by Auscript until the conference before me on 3 April 2020.
 Following the conference with the parties before me on 31 March 2020, Auscript wrote to employees informing them that they had met with the ASU to seek “feedback on strategies to manage the situation”. 5 The correspondence advises employees not to return to the office and that their individual circumstances will be discussed between 1 and 3 April 2020.
 The ASU submit that consistent with my statement of 1 April 2020, the parties met on 3 April 2020, however, no issues were resolved except for the Protocol. It also submits that arbitration is required. To assist the Commission, the ASU filed a draft order containing its suggested resolution of the dispute.
 The ASU submit that Auscript failed to consult and rather than accepting that there is no option other than to close the Melbourne site and make redundant 58 permanent positions, that through collaboration, initiatives to save jobs should be properly considered by Auscript. It concludes its submissions as follows:
“21. In conclusion there is no reason why Auscript cannot work collaboratively with the ASU to save its’ future both during and after the COVID-19 crisis. The ASU acknowledges that Auscript has lost the majority of its’ business in a short space of time. With the timely announcement of Federal Government subsidies such as the Job Keeper and Job Seeker allowances much of their labour costs can be offset. Further the other flexible leave options provide an opportunity to retain as many of the permanent staff as possible.
22. The ASU has reached agreement with employers in relation to varying the Clerks – Private Sector Award 2010 - the relevant underpinning award covering Auscript Staff. The temporary award variation will assist employers nationally with a certain level of flexibility to retain as many of the 1 million plus employees covered by this award.
23. In the same way the ASU has worked with the Clerks – Private Sector award employers, Spark & Cannon and for most it’s previous history, Auscript, so it possible to work with the current management of Auscript.
24. The ASU contends that to achieve any significant progress there needs to be consistent ground rules logically following the existing ones that have been recognised by Commissioner Yilmaz. To proceed any further the ASU believes the current consultation dispute should with respect be resolved by arbitration in the form of the attached order setting appropriate round rules.” 6
 In reply, Auscript submits as follows:
• It cannot risk the economic collapse it would face if the courts closed as long as is currently projected by its clients
• The number of court transcripts the company produces has dropped by a range of 60percent-87percent depending on the type of service since 16 March 2020.
• Its projected forecasts have no definite timeframe for the resumption of regular workloads
• The company has identified cost cutting measures including closing satellite offices for which there is no contractual obligation to remain open
• Auscript has engaged in “meaningful, open, and transparent communications with both the affected employees and the ASU in respect of its proposed structure and has given reasonable and realistic consideration of the views of the affected employees and the ASU. However, Auscript must execute its proposed restructure to ensure its ongoing viability as a matter of urgency” 7
• Auscript rejects and disputes the ASU submissions and in the alternative, provides suggestions for a statement from the Commission
 Auscript has an obligation to comply with the consultation clause in their Agreement. It became apparent that Auscript decided to close the Melbourne office when it determined that there were no contractual obligations preventing them from doing so. It determined that for financial reasons the office had to close. At the times it met with the ASU in the week commencing 30 March 2020, I am not satisfied that it gave genuine consideration to options other than redundancy. Auscript submits one employee indicated a willingness to move from Melbourne to Brisbane and it will accommodate that person’s transfer.
 The additional announcements by the Federal Government to assist employers and employees while noted by Auscript, were rejected, as they had not been passed in law, and its position remained that it has to act urgently for the sake of the business.
 The purpose behind consultation clauses is to ensure that an employer genuinely considers options so that measures such as redundancy are a last resort. Further, such clauses are intended to provide employees with a reasonable and fair process where major changes in production, organisation, structure or technology are likely to have significant effects on employees. 8
 Auscript refer to the familiar decision of Justice Logan in CFMEU v BHP Coal Pty Ltd 9, and submit that consistent with the Judge’s reasoning it met its obligations. In relation to the paragraph cited by Auscript it appears from the evidence that Auscript did not properly comprehend the description of consultation:
“All that is necessary is that a genuine opportunity to be heard about the nominated subjects be extended to those required to be consulted before any final decision is made (my emphasis)……That genuine opportunity entails furnishing such information about the occasion for consultation as is reasonably necessary for the making of suggestions in respect of the subject for consultation and being receptive to any resultant suggestions. It does not mean that one cannot approach consultation with a particular outcome in mind, only that one’s mind must not be unduly fixed.” 10
 To put it more simply, decisions of this Commission describe consultation in the following manner:
“Consultation has a purpose and it cannot be conducted for mere show. If the consultation does not provide [the employee] with an opportunity to influence the decision, it is of no value and the requirement to consult and the consultation is hollow.
By the same token at some point management must be able to make a final decision to terminate employment by reason of redundancy by having taken into account the views of [the employee] through consultation.” 11
 The Full Bench in Consultation Clause in Modern Awards [2013[ FWCFB 10165 12 considered the meaning of the word ‘consult’ and stated:
“The word ‘consult’ means more than the mere exchange of information…The right to be consulted is a substantive right, it is not to be treated perfunctorily or as a mere formality. Inherent in the obligation to consult is the requirement to provide a genuine opportunity for the affected party to express a view about a proposed change in order to seek to persuade the decision maker to adopt a different course of action.” 13 (citations omitted)
 I am not satisfied that the participation of Auscript in conciliation before the Commission was genuine. Auscript verbally gave its commitment to the agreed statement, that it would genuinely consider alternatives to redundancy, but it concealed its decision to make redundant 58 permanent positions. Auscript’s actions can be described as a mere formality in so far as its decision to make the 58 employees redundant was already made throughout what it describes as its “consultation period”. This decision became only apparent when the CEO from the US joined the conference on 3 April 2020. Further it was revealed that employees that volunteered would be immediately terminated on Monday 6 April 2020, and the balance of the 58 permanent positions would be informed of their redundancy on 7 April 2020. When questioned how the balance would be selected, Auscript advised that it would select based on performance and if individuals had been subject to performance improvement processes. No further detail was shared, nor was it offered. It was apparent that such decisions had been made by Auscript before they were disclosed to the ASU and therefore any real opportunity for the ASU, its members or employees to influence Auscript’s decision making did not exist.
 The correspondence to staff on 30 March 2020, suggesting Auscript would enter into a period of consultation in my opinion is hollow as none of the options other than closure of the site in Melbourne was the plan, and realistically employees in Queensland were not given realistic options. Selection processes for compulsory terminations, albeit without any practical detail, had not been revealed at any point until 3 April 2020.
 I have considered the submissions and the evidence, and I am satisfied that Auscript provided verbal assurances to the ASU and the Commission concerning compliance with their obligations and agreed actions, but then proceeded to ignore those commitments. The process adopted in implementing their decision to close the Melbourne office and make many employees redundant in the face of their assurances to the ASU and Commission that they were willing to make those commitments, is evident of their failure to comply with their legal obligation to engage in genuine consultation.
 While it is accepted that Auscript has seen a drastic drop in demand for their services, Auscript has submitted that employees have been working on backlogged jobs. Based on the submissions and materials submitted it can be reasonably inferred that employees are unaware that Auscript has made its decision, and its offer to consider alternatives was in fact an empty offer.
 Auscript mentioned it had been working on a platform to allow employees to work remotely, but no reason was given why all employees in Melbourne had to be made redundant.
 The ASU and their members acknowledge and expect that major decisions need to be made. However, both the ASU and their members have shown commitment to work with Auscript to secure its future business in Melbourne and elsewhere by taking advantage of options such as stand-down, utilisation of leave hours, leave without pay, career breaks, access to support programs and any other options. The position of Auscript is to make employees redundant and relieve itself entirely of any further employee accrual of entitlements.
 Having considered jurisdiction and the question to be tried, I now turn to the balance of convenience. I consider there is some urgency in this matter as a large number of employees unbeknown to themselves, have been selected by their employer to be made redundant. Auscript has experienced substantial loss in demand for work. It is a large employer with employees with sizable lengths in employment. The submission from Auscript suggests further redundancies are likely through additional site closures 14 in addition to those revealed on 3 April 2020. The submission also refers to stage two to restructure costs, although it is not evident what this stage entails.
 While Auscript has determined that its future is unviable, there nevertheless remains an obligation to treat staff with dignity in this time of crisis. In this respect I am of the view that the focus should be on putting in place processes to remedy the impact on employees, while limiting the impact on Auscript as much as reasonably practicable.
 I have determined that Auscript has not consulted its employees or the ASU as required by its Agreement. Therefore, the balance of convenience favours the issuing of an order, and that order will be published separately.
Final written submissions:
ASU’s Outline of Submissions filed 4 April 2020.
Auscript’s Outline of Submissions filed 5 April 2020.
Printed by authority of the Commonwealth Government Printer
2 Statement of 1 April 2020.
3 AE879380 at clauses 220.127.116.11 – 18.104.22.168.
4 Auscript letter to employees dated 30 March 2020.
5 Auscript letter to employees dated 1 April 2020.
6 ASU Outline of Submissions of 4 April 2020 at -.
7 Auscript’s Outline of Submissions of 5 April 2020 at .
8 AE879380 at clause 3.3.1.
9 CFMEU v BHP Coat Pty Ltd (2016) FCA 1009.
10 Ibid at .
11 Belinda Lee v Mission Australia  FWC 3557  and .
12 [2-13] FWCFB 10165.
13 Ibid at -.
14 Auscript’s Outline of Submissions at .